VISUALIZING A NEW ARTISTS' RIGHTS ACT: WHEN DOES THE LAW PROTECT GRAFFITI?

• Author: Ippolito, Rachel

CONTENTS INTRODUCTION I. THE VISUAL ARTISTS RIGHTS ACT A. Justifications for VARA B. Moral Rights C. VARA 's Limitations 1. Limitations Defined by Statute 2. Recognized Stature Limitations 3. Temporal Limitation 4. Made-for-Hire Limitation D. What Constitutes Destruction or Modification 1. Relocation 2. Obstruction of View E. Waiver of Moral Rights F. Ninety-Days' Notice G. VARA Impairing Artist Rights II. GOVERNMENT IMMUNITY FROM VARA VIOLATIONS A. Sovereign Immunity Generally B. Determining Government Immunity from VARA 1. Article I 2. Section 5 of the Fourteenth Amendment a. Standard for Section 5 Abrogation b. Applying Section 5 Analysis to CRCA 3. VARA Implications III. GOVERNMENT SPEECH AS AN ADDITIONAL LIMITATION ON ARTISTS' RIGHTS A. Government Speech Background B. Implications for Public Monuments and Art IV. UNDERMINED VARA RIGHTS A. Discouraging the Creation of Art B. Hindering Societal Benefits V. RECOMMENDATIONS TO IMPROVE VARA A. Replacing "Recognized Stature" B. Implementing Location-Specific Protections C. Extending the Ninety-Days'-Notice Provision D. Abrogating States' Sovereign Immunity CONCLUSION INTRODUCTION

For over twenty years, a Queens neighborhood was home to what was hailed as the "world's largest open-air aerosol museum." (1) Located on the walls of the 5Pointz complex, the collection of graffiti murals initially represented the unique collaboration between the warehouse's real estate developer and graffiti artists to transform their neighborhood into a "thriving residential enclave." (2) This changed, however, in 2013, when the developer planned to demolish the 5Pointz warehouse, and consequently the graffiti covering its wall, and build luxury, high-rise condos. (3)

Amid the conflict, the artists sought a legal remedy to protect their graffiti. The artists filed for a preliminary injunction to prevent the developer from demolishing the warehouse. (4) The United States District Court for the Eastern District of New York, however, denied the artists of injunctive relief but announced that the court would issue a written opinion to explain its reasoning. (5)

Although the developer had won this legal battle, the developer then took a misstep that would cost millions. Rather than wait just eight days for the court's written opinion, the developer whitewashed the warehouse, effectively destroying the artists' graffiti. (6) Subsequently, the developer found himself back in court.

In this second legal battle, the court held that destroying the graffiti violated the Visual Artists Rights Act ("VARA"), (7) which provides artists with rights both to protect their artwork and reputation and to seek monetary damages if their art is intentionally damaged. The court described the developer's conduct as "precipitous" (8) and the "epitome of willfulness." (9) The court may have originally denied the artists' preliminary injunction, but the court did not give the developer the right to destroy the graffiti murals. The developer's conduct was "an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art." (10)

Though their art was destroyed, the 5Pointz case marks a victory for artists' rights under VARA. Notably, this is the first time that a court has declared that artists' graffiti can be worthy of protection under the law. (11) Furthermore, the court awarded twenty-one artists $6,750,000 for the destruction of their graffiti murals. (12) As this Note describes, however, the court's progressive holding for the graffiti artists at 5Pointz is the exception and not the rule.

This Note discusses VARA, a federal statute under the Copyright Act enacted to provide artists with greater rights to protect their artwork. (13) Specifically, this Note focuses on VARA's limitations in protecting artists' rights and argues that VARA works to the disadvantage of many artists, especially those with publicly displayed art. Additionally, this Note discusses the limited protections that artists have against the government when the government violates artists' VARA rights. Due to these limitations and inadequate protections that currently exist for artists under VARA, this Note recommends modifications to VARA to better achieve its intended goals.

Part I introduces VARA and describes the rights VARA provides to artists and the justifications of those rights. Part I also discusses VARA's limitations in terms of what constitutes a work of art, how VARA violations are avoided, and how VARA rights may be waived. Part I concludes with an analysis of how VARA's limitations contradict the statute's purpose to provide artists greater rights. Parts II and III argue that the government can often disregard the artists' VARA rights. Part II considers whether state governments are immune from VARA violations. Part III introduces the government speech doctrine and explains how the doctrine further limits artists' rights in their public artwork. Part IV explains how VARA, along with states' immunity from VARA and government speech, harms most artists and society more than it helps. Finally, Part V recommends several amendments to VARA that would better suit both artists and society.

1. THE VISUAL ARTISTS RIGHTS ACT

   In 1932, Nelson Rockefeller commissioned Diego Rivera to construct a mural in Rockefeller Center. Construction of "Man at the Crossroads" began in March 1933. (14) Shortly thereafter, however, tension grew between Rockefeller and Rivera due to the political implications of the mural, namely that, among other details, the mural included an image of Vladimir Lenin. (15) When Rockefeller asked Rivera to remove this image of Lenin, Rivera refused. On May 22, 1933, Rockefeller paid Rivera in full but banned Rivera from completing his work. In early 1934, prior to its completion, Rivera's mural was destroyed and "chiseled off the wall." (16)

   At the time of the "Man at the Crossroads" dispute, American artists did not have statutory protections for moral rights--an artist's right to the physical integrity of his artwork even when another owns the art. Rockefeller owned Rivera's unfinished mural. Therefore, Rockefeller was "legally entitled to destroy it." (17)

   1. Justifications for VARA

      It was not until 1990 when Congress enacted VARA (18) that artists had the "power to protect their artworks from destruction, mutilation or misattribution." (19) With VARA, an artist can prevent the destruction of his artwork--even artwork he no longer owns. (20)

      Like the goals of copyright laws that are articulated in the United States Constitution, VARA was enacted "[t]o promote the Progress of Science and useful Arts." (21) To do so, VARA was enacted with both private and public considerations in mind. (22)

      Specifically, VARA cultivates a "climate of artistic worth and honor that encourages the author in the arduous act of creation." (23) This allows artists to protect their reputations and artistic brands. (24) Further, VARA encourages artists to share and sell their art because VARA protects artists' art and provides artists with recourse if their art is modified or destroyed.

      With the creation of new artwork and the preservation of existing artwork, the public also benefits. (25) VARA "preserve[s] the artistic heritage for the benefit of society on the principle that living and working among works of art has positive societal effects." (26) In the House Report, the Committee on the Judiciary explained the societal importance of preserving art and encouraging artistic expression:

      Artists in this country play a very important role in capturing the essence of culture and recording it for future generations. It is often through art that we are able to see truths, both beautiful and ugly. Therefore, ... it is paramount to the integrity of our culture that we preserve the integrity of our artworks as expressions of the creativity of the artist. (27) B. Moral Rights

      VARA's justifications are codified as moral rights. (28) The right of integrity provides artists with the ability to prevent the destruction or modification of their artwork, even when another person owns the works of art. (29) On the other hand, the right of attribution provides artists the right to retain authorship of works they created and also disclaim authorship of works of art that were modified or destroyed. (30)

      Unlike property or ownership rights, moral rights are "rights of a non-economic, spiritual or personal nature, existing independently of an artist's copyright." (31) In a way, VARA rights are more expansive than property rights because an artist retains moral rights in his artwork even after he transfers his ownership to another. (32)

   3. VARA's Limitations

      VARA does not apply to all works of art; rather, it protects art only in limited circumstances. (33) The following sections discuss various limitations on VARA's scope.

      1. Limitations Defined by Statute

         First, VARA provides an artist moral rights to his work only if that work is considered visual art that exists in single copies or limited editions. A work of visual art is defined as:

         (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

         (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. (34)

         Second, the definition of a work of visual art excludes specific items, such as maps, posters, technical drawings, books, magazines, and electronic information services. Items for merchandising or advertisement and any work made for hire are also not...