Graffiti and the Visual Artists Rights Act

• Citation: Vol. 11 No. 2
• Publication year: 2015

Washington Journal of Law, Technology and Arts Volume 11, Issue 2 Summer 2015

Graffiti And The Visual Artists Rights Act

Amy Wang(fn*) © Amy Wang

ABSTRACT

Common adornments on the sides of freight trains, highway underpasses, and dark alleyways, aerosol paint designs now also boast recent appearances on high-fashion runways, in Top 40 music videos, and even at sophisticated art auctions. Graffiti, by any other name, is still generally associated with gang activity. However, the acceptance of street art by pop culture has legitimized spray painting as another expression of modern art and aerosol artists have proven they deserve recognition. Nonetheless, while intellectual property law extends protection to benefit other artists, its application is limited as a recourse for graffiti artists. Why? Because the irony of protecting vandalism has not escaped the courts.

This Article explores the strategies used by an artist's counsel to protect his or her client's work from alleged infringers. After a brief overview of general copyright protections, the Article will focus on the potential claims an artist can assert under the Visual Artists Rights Act of 1990. Specifically, it will examine the case law established by a U.S. District Court in Cohen v. GandM Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013), and discuss both an artist's possible claims for protection under VARA and the possible defenses. This Article will highlight key issues that remain unanswered and summarize recommendations for practitioners whose clients are on either side of these issues.

TABLE OF CONTENTS

Introduction .................................................................................. 142

I. The Visual Artists Rights Act of 1990 ................................. 144

A. Copyrights and the Fair Use Doctrine ............................. 144

B. How VARA is Differentiated from Copyright ................ 145

C. Defenses to VARA Claims .............................................. 147

II. Analysis of Cohen v. GandM Realty ....................................... 147

A. The Artists' Claims Under VARA ................................... 147

B. Wolkoff's Defenses .......................................................... 148

C. The Court's Analysis of Claims Under VARA ............... 148

III. Issues Left Unanswered by Cohen v. GandM Realty ............. 151

Conclusion ................................................................................... 152

Practice Pointers ........................................................................... 153

INTRODUCTION

For nearly two decades, as the Queens-bound 7 train emerged from under the East River and passed through Long Island City, riders were treated to front row, first-class views of original paintings created by artists from around the world. That is, until November 2014, when all the artwork was haphazardly painted over in cheap, white primer and eventually the entire display was unceremoniously torn down. By January 2015, the graffiti mecca known as "5Pointz" had been demolished into nothing but a city block of rubble.(fn1)

5Pointz got its start in 1993 when Jerry Wolkoff, owner of a 200,000 square foot warehouse complex, gave permission to local street artists to use his buildings to showcase legal graffiti work.(fn2) Wolkoff specified only three restrictions: no political statements, no religious statements, and no pornography.(fn3) In 2002, Jonathan Cohen took over as the curator and manager of the aerosol arts program at 5Pointz.(fn4) Cohen, an artist himself under the tag "Meres One," transformed 5Pointz into "the largest collection of exterior aerosol art in the United States."(fn5) All artworks required Cohen's express permission.(fn6) He would only allow new or unknown artists to initiate works after reviewing their portfolio and approving the proposed piece.(fn7) Cohen also decided the configuration of various artworks-the collection eventually grew to host over 350 works of art on the exterior and interior walls of the warehouse.(fn8) 5Pointz became a destination for both artists and art patrons from across the globe.(fn9)

In June 2012, Wolkoff, by and through his company, GandM Realty, announced a development project at the site of the warehouse.(fn10) The proposal aimed to replace the warehouse with two high-rise luxury apartment buildings containing over 1,000 residential units and to transform the dilapidated warehouse district into a gentrified community.(fn11)

The local community board initially rejected Wolkoff's application for a special zoning permit, citing the development's dearth of affordable housing and art studios, among other community-focused reasons.(fn12) Wolkoff returned with concessions, including 210 affordable units, 12,000 square feet of artist's studios, and even an open space for Cohen to continue curating street art.(fn13) The New York City Council unanimously approved this revised proposal.(fn14) The fate of 5Pointz appeared inevitable.

Wolkoff's project, however, was further delayed by a lawsuit brought by seventeen 5Pointz artists led by Cohen.(fn15) The artists invoked the federal Visual Artists Rights Act to attempt to secure a preliminary and permanent injunction barring Wolkoff from demolishing the warehouse and all of 5Pointz's artwork with it.(fn16)

I. THE VISUAL ARTISTS RIGHTS ACT OF 1990

In 1990, Congress acknowledged artists' "droite moral," or moral rights, by enacting the Visual Artists Rights Act ("VARA") as a supplement to traditional copyright law.(fn17)

A. Copyrights and the Fair Use Doctrine

Copyrights, in general, secure for creators special property rights over their original work as long as the product is "fixed in a tangible medium."(fn18) A copyright holder...