REFORMING THE VISUAL ARTISTS RIGHTS ACT TO PROTECT #STREETART IN THE DIGITAL AGE.

• Author: Matthews, Ellen

TABLE OF CONTENTS INTRODUCTION 646 I. BACKGROUND 650 A. Social Background 651 1. Street Art 651 2. Social Media, Street Art, and Advertising 652 B. Legal Background 654 1. Berne Convention of 1886 655 2. The Visual Artists Rights Act of 1990 656 a. VARA Protections 657 b. VARA Limitations 657 c. Remedies Under VARA 660 II. VARA'S AMBIGUITY INJURES BOTH STREET ARTISTS AND PROPERTY OWNERS 660 A. VARA Inadequately Protects Works Made for Hire 662 B. VARA Fails to Define Recognized Stature 663 III. A PROPOSED REFORM OF VARA 667 A. Eliminating Ambiguous Language 667 B. Developing a National Recording System of Street Art 670 IV. STRIKING A BALANCE BETWEEN EXPANDING AND CURTAILING ARTISTS' MORAL RIGHTS PROTECTIONS 673 A. Congress Should Expand VARA Protections to Include All Public Art 674 B. Congress Should Curtail VARA Protections of Public Art Placed on Private Property 675 CONCLUSION 677 INTRODUCTION

Consider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist's wall mural, develops plans to renovate the building for a new use. Upon hearing of Business's attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. (1) Would a court prevent Business from altering its building due to Artist's moral rights to her work? (2) If the court follows the Second Circuit's decision in Castillo v. G & M Realty L.P., the answer might be yes. (3)

The law of property, unlike that of contracts, provides individuals with a fixed and narrow range of rights. (4) In the civil law system, the limitation on individuals' property rights is known as numerus clausus. (5) Thomas Merrill and Henry Smith assert that property owners' right to exclude others from their property "must be regarded as a moral right." (6) Further, although the principle ofnumerus clausus is not explicitly recognized in the American common law system, common law courts "treat previously-recognized forms of property as a closed list that can be modified only by the legislature." (7)

By enacting the Visual Artists Rights Act (VARA) in 1990, Congress expanded artists' bundle of rights and guaranteed certain protections, including the right "to prevent any destruction of a work of recognized stature," although the statute does not further define "recognized stature." (8) In doing so, Congress perhaps unintentionally created an opportunity for street artists to promote their rights over and against those of real property owners. (9) This moral right opportunity made headlines in February of 2020 when the Second Circuit affirmed a $6.75 million judgment against a property owner, Gerald Wolkoff, after the trial court found he violated VARA by destroying artwork displayed on his property in retaliation against twenty-one plaintiff-artists seeking to preserve their works. (10)

Did Congress predict that a city's murals would draw tourists to that location, (11) or that street art shared through social media would launch artists' careers (12) when it failed to elaborate on what constitutes a work of recognized stature? (13) Certainly not. Although street art has existed throughout history, the widespread use of social media in the twenty-first century has created a platform from which visual artists can garner public attention and acclaim.

In enacting VARA, Congress created problems for both visual artists and real property owners. Over the past three decades, artists have rarely brought VARA actions against real property owners due, in part, to the statute's limited scope. (14) Of the suits that are brought, artists seldom win. (15)

It is unclear whether artists who complete commissioned murals do so on a made-for-hire basis. (16) Therefore, street artists who create art for property owners may find no protection under VARA due to the statute's limitations and exceptions. Further, the ambiguous language in VARA, namely the recognized stature provision, potentially impairs the common law rights of property owners whose buildings display artists' graffiti art or murals without putting those individuals or groups on notice.

Artists and moral rights advocates celebrate the Castillo decision for its promotion of visual artists' moral rights over their works." However, some property owners argue that the recognized stature provision of VARA "egregiously runs afoul of the Fifth Amendment's due process requirements because Congress neglected to define this novel phrase" and that it "clearly impairs the traditional rights of property owners, which include the right to dispose or destroy one's property." (18)

Ultimately, the statute's ambiguous language presents problems for both the artists it seeks to protect and the real property owners it apparently threatens. Without revision, VARA and recent court decisions surrounding the statute could lead business owners to

disallow artists to create works of visual art on their property. (19) Such a refusal would stand in direct contrast to the original purpose of VARA: the acknowledgement of artists' moral rights in order to produce "a climate of artistic worth and honor that encourages the author in the arduous act of creation." (20)

When Congress drafted and enacted VARA, neither large-scale mural projects nor social media were prevalent in the United States. This Note addresses the present-day ramifications of VARA's ambiguity by examining the conflicting rights of visual artists who create street art and those of real property owners. This Note ultimately argues that Congress should amend VARA in order to balance the rights of visual artists and real property owners and notify property owners of VARA's protections.

Congress should omit ambiguous and unnecessary language from VARA--namely the recognized stature requirement and the workmade-for-hire exception. Omitting this language would elucidate visual artists' rights under VARA, as artists and property owners will not have to guess whether a work of visual art has achieved recognized stature status or whether an artist completed a work of commissioned art on a for-hire basis. In addition, Congress should implement a formal recording system for street art that artists or their communities wish to protect. (21) This innovation would alleviate risks that many property owners who maintain buildings that display street art unknowingly face. Without proper notice of artists' possible VARA claims, property owners who renovate their buildings could face severe consequences after they alter or destroy an artist's work. (22) Ultimately, a recording system of street art would promote artists' moral rights to the general public while placing property owners on notice of those rights.

Part I of this Note provides background on the development of visual artists' moral rights in the United States. Part II discusses the ways in which courts have addressed visual artists' moral rights and introduces the problems that arise from the Second Circuit's interpretations of the Copyright Act and VARA. Part III proposes a solution to clarify VARA's language in order to better promote the moral rights of visual artists who produce street art in the twenty-first century. In addition, Part III posits that a proper recording system of VARA-protected street art would increase public knowledge of artists' moral rights in the United States and prevent property owners from mistakenly altering or destroying art, thereby subjecting themselves to suit. Part IV concludes by addressing polar counterarguments that assert, on the one hand, that VARA does not protect artists enough, and on the other hand, that VARA provides unnecessarily broad protections to artists.

1. BACKGROUND

   In 1990, when Congress passed VARA into law, society labeled graffiti as inherently ephemeral. Indeed, "[w]riting graffiti was an act of rebellion" against traditional art movements, and graffiti writers promoted graffiti's impermanence as a "canon of the culture." (23) Recently, however, street artists have incorporated increasingly artistic, large works of art on the facades of buildings. (24) With the proliferation of social media, large-scale murals often attract tourists who, in turn, capture and share photographs of these works online. (25) In response, opportunistic businesses and real estate developers clamor to both buy property in neighborhoods where artists have created murals and commission visual artists to produce more public art on their buildings. (26) In the digital age, visual artists whose murals draw public acclaim on a national scale via the internet could assert that their works have achieved recognized stature and effectively claim VARA protections over them. Unbeknownst to many, Congress--in acceding to an international convention that elevates artists' moral rights and ultimately passing VARA--created an opportunity for mural artists to assert their moral rights over and against the rights of business owners.

   1. Social Background

      Black's Law Dictionary does not define "graffiti," "mural," or "street art." This Note relies upon mural artist Paul Walsh's definitions of each. (27) Graffiti writers often act under anonymity with pseudonyms to illegally create graffiti. (28) In contrast, artists paint murals with permission or by commission. (29) Finally, street art became popular between the time that Banksy painted Mild Mild West in 1999 and Shepard Fairey designed the HOPE poster for Barack Obama's presidential campaign in 2008. (30) This Section details the ways in which street art incorporates aspects of graffiti and mural art, and it introduces the implications of street art's having "been swallowed up by capitalism" in recent years. (31)

      1. Street Art

         Although graffiti writers began producing modern graffiti in Philadelphia in the 1960s, the street art...