Academic journal article Case Western Reserve Law Review

Visualizing a New Artists' Rights Act: When Does the Law Protect Graffiti?

Academic journal article Case Western Reserve Law Review

Visualizing a New Artists' Rights Act: When Does the Law Protect Graffiti?

Article excerpt

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. …

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