Can Street Artists Recover Damages from Property Owners for Whitewashing Their Work?
Can property owners freely remove street art painted on their property walls? Many might think the answer is obviously yes – they own the property, so they can do what they want with it, right? However, it may in fact be illegal, because of a law called VARA (Visual Artist Rights Act).
Currently, six artists are suing property owner for damages under VARA for whitewashing the iconic murals of San Francisco gay bar, the Stud. The LGBTQ-themed mural was painted on the bar’s exterior during Pride week in 2017 collaboratively by numerous artists. The Stud was forced to close last May because of the pandemic and in June during Pride Month, the mural was whitewashed and completely erased by the new property owners, without any notice. This caused outrage from the artists and the San Francisco LGBTQ community, seeing it as an intentional destruction of a piece of important LGBTQ history. The artists sued the new property owners, claiming that the mural is protected under VARA. Whether they will win the lawsuit will depend on specific language of VARA and how it applies to the mural. Lawyers for the plaintiffs thinks the law is clear given the precedent of the landmark 5Pointz case, which will be discussed later.
So what is VARA exactly, and what does it protect? VARA is intellectual property law that grants “moral rights” to artists, protecting “attribution” and “integrity” rights of works of visual art created since June 1991. The right of attributionmeans the right to (a) claim authorship, and (b) to stop one’s name from being applied to work that one didn’t create, or work that was distorted or mutilated. The right of integrity prevents (a) any intentional distortion, mutilation, or other modification, and (b) any intentional or grossly negligent destruction of works of recognized stature. Note that protection against destruction is limited to works “of recognized stature.”
The applicable statute in the whitewashed mural case would be the right of integrity and protection against destruction. Thus, the plaintiffs could be successful only if the mural art work are “of recognized statute” under VARA. The statute does not define nor gives guidance of what this means. The second circuit court in Carter defines it as works that “has ‘stature,’ i.e. is viewed as meritorious, and (2) that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society. In the 5Pointz case, the court also looked to third party attention and social media buzz to determine whether there is enough recognition to give rise to recognized stature of the graffiti art works in question and found that some works did and some did not qualify for VARA protection.
The facts of the 5Pointz case shares similarity with the San Francisco mural case and the SF plaintiffs would most likely base their case largely on the 5Pointz case. In the 5Pointz case, property owner Wolkoff gave permission to aerosol artist Cohen in 2002 to curate graffiti art on Wolkoff’s building, which became a forum for street artists to create and exhibit their graffiti art on the walls on a rotational basis, and developed into a tourist attraction and a part of the NYC landscape. In 2013, Wolkoff decided to reconstruct his property into a luxury rental complex and whitewashed the building walls, destroying all the artworks. The artists and Cohen sued Wolkoff for damages under VARA and the artists were awarded a statutory award of $6.75 million, citing Wolkoff’s bad faith and willful destruction of the art works. This ruling and award was affirmed by the second circuit. The artists’ win was cemented when the U.S. Supreme Court recently declined to hear the case.
Thus, the 5Pointz case established that aerosol artwork on long-standing walls can qualify as works of recognized stature protectable under VARA, and that intentional removal of the artworks without notice or consent can give rise to maximum statutory damages.
It seems like the SF mural case will be similarly decided, given that the property owners did not give any notice or announcement of their plan to whitewash the paintings. Based on social media buzz and community attention to the mural, it is also likely that the painted mural will be deemed “of recognized stature.”
So how should property owners protect themselves from these lawsuits? VARA has specific provisions for works on buildings. For works that cannot be removed without damage, VARA rights can be waived if there is written consent by the author; for works that can be removed without damage, VARA rights can be waived if the owner made a good faith attempt without success to notify the author of owner’s intended action, or provided notice in writing and author failed to remove work or pay for removal within 90 days.
Thus, for works that can be removed without damage, owners could simply give a 90 days’ notice before removing the works. It is trickier with works that cannot be removed without damage, such as graffiti or wall paintings. The owner could try and get a written VARA waiver from the author, but it might be impractical if there are multiple authors, or for fast-moving artforms that are constantly changing such as street art.
Given these precedents and as more people become aware of VARA laws, future property owners might be discouraged from allowing these uses of their building walls, in order to avoid these potential lawsuits.
