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Graffiti artists are gaining recognition—and rights

Graffiti used to be thought of primarily as vandalism—as a furtive, illegal activity that defaced public property. It was seen as both a reflection of and contributor to urban decay.

However, several recent high-profile lawsuits involving what is now called “exterior aerosol art” reveal just how far graffiti has advanced in cultural esteem and recognition as a legitimate art form. While some corporations are using aerosol art’s newfound popularity turn a profit, aerosol artists are pushing back and asserting their authorial rights in court.

For example, earlier this year H&M attempted to use a piece of graffiti art on a Brooklyn handball court as the backdrop for an ad. The work had been put there illegally. When the artist objected, H&M asked a court to declare that illegal graffiti art is not entitled to copyright protection. In the face of a swift social-media-fueled backlash against the clothing chain for appearing disrespectful to street artists, it dropped the suit and apologized.

In another case, this time involving legally made aerosol art, a Swiss artist who goes by the name Smash 137 is suing General Motors for including one of his commissioned murals in a Cadillac commercial set in a Detroit parking garage. The artist claims that GM violated his copyright by using images of the mural without his knowledge or consent.

One of the most noteworthy lawsuits involving graffiti art is the recent decision (currently under appeal) in the 5 Pointz case. In November 2017, 21 aerosol artists were awarded $6.75 million by a federal judge in a landmark lawsuit against the developer of the 5 Pointz factory complex in Long Island City, in Queens. In the 1990s, the developer, Jerry Wolkoff, began allowing aerosol artists to use the sprawling complex to develop and display their work. He even employed a curator to manage the site, with the mutual understanding that eventually all of the work would be destroyed. 5 Pointz, which is visible from the New York City Subway’s 7 line, began to attract attention from aerosol artists around the world as well as tourists. The site was featured in a TV show, a movie, and in multiple music videos. Ironically, its success as a “graffiti mecca” may have helped to hasten its demise by increasing the value of the property.

“Moral rights laws are generally understood to protect the reputational interests of visual artists.”

In 2011, Wolkoff announced that he planned to demolish the factory buildings in order to build two apartment towers. The artists objected. Citing the Visual Artists’ Rights Act (VARA), a federal statute which protects works of art with “recognized stature” from destruction, they sought an injunction in court against the destruction of their murals. Wolkoff falsely claimed that he needed to begin development of the complex right away, lest he lose certain tax benefits, and the judge denied the injunction in late 2013. As it turned out, Wolkoff had not even applied for the permits he needed to develop 5 Pointz. He used the opportunity to whitewash all of the 5 Pointz murals in the middle of the night, without warning the artists. A jury subsequently found that 45 out of 49 of the works were of “recognized stature” and awarded $150,000 in damages for each work, for a total of $6.75 million.

While some worry that the outcome will have a chilling effect on opportunities for exterior aerosol artists to receive permission from property-owners to develop their work, the ruling is significant for several reasons. It was the first time that VARA had been applied in a case involving graffiti art, and it thereby affirms its status as a legitimate art form.

Second, it highlights the delicate balancing act between the rights of property owners and artists that judges must undertake when applying this law to works of art permanently affixed to walls. It is one thing for the law to enjoin the owner of an oil painting of recognized stature against destroying it: this seems like a relatively minor restriction of a property owner’s rights. But when the protected artwork is part of a building, one potential implication of VARA is that the building owner could be forced to preserve the artwork for the life of the artist. This issue arose in a similar case in 2016, in which the artist Katherine Craig sued a property owner who wanted to convert the 9-story building on which she had painted her Illuminated Mural into condos. The case was settled before it went to court.

While VARA comes under the umbrella of US copyright law, the statute protects the so-called “moral rights” of artists, which are their non-economic or reputational rights in their artworks. This enables a visual artist to her artwork but still maintain certain rights with respect to it, because that artwork serves as a representative of her name brand as an artist. If the work is distorted, it may harm the reputation of the artist whose name is attached to the work. (VARA protects all works of visual art, whether they have recognized stature or not, from modification or misattribution). But unlike traditional forms of visual art, aerosol art on building walls cannot easily be bought or sold, and they are usually understood to be ephemeral by their very nature. In one sense, this makes exterior aerosol art an uncomfortable fit for the paradigmatic VARA cases presumably intended by Congress when it passed the statute nearly thirty years ago. On the other hand, however, it highlights the interest that the 5 Pointz artists had in the preservation of their works: they could not sell them, but their ongoing presence could lead to future commissions and professional opportunities. In that sense, moral rights, despite their designation as non-economic rights, can have very real material consequences for artists. Reputation is a form of wealth.

Moral rights laws are generally understood to protect the reputational interests of visual artists. But they also protect the interests of the public, which can regard cherished works of art as its own, as part of a cultural patrimony. This is why works of recognized stature are protected from destruction under VARA—although it has been left to the courts to decide just which artworks cross that threshold. The notion that a work of graffiti could become so valuable to the public that its removal would spark public outcry might seem farfetched, but this has happened on multiple occasions when enterprising property owners have attempted to sell works by Banksy that he illegally sprayed on their walls. When residents of a community protest the removal of graffiti art, rather than its presence, it is a sure sign that exterior aerosol art has entered a new era.

Featured image credit: Lost in Keong Saik by Autumn Studio. Public Domain via Unsplash

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