February 08, 2021 Feature

The Visual Artists Rights Act: A Legal Tool to Preserve Modern Protest Art

Caleb L. Green

©2021. Published in Landslide, Vol. 13, No. 3, January/February 2021, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The death of George Floyd1 has resulted in an international outcry for social and criminal justice reform, sparking a wave of protests throughout the United States and various countries. On May 26, 2020, the day after George Floyd’s death, Minnesota locals took to the streets to participate in protest demonstrations.2 These protests swiftly swept throughout the United States. In fact, by May 28, 2020, every major U.S. city had experienced some form of protest in response to George Floyd’s death.3 By June 2020’s end, protestors had performed demonstrations in every state within the United States.4 This wave of civil disobedience and protests expanded worldwide quickly, as demonstrators gathered internationally throughout Europe, Oceania, Asia, Africa, and Canada.5

However, protesters were not limited to traditional protest demonstrations, such as marches and rallies. Namely, protestors have embraced nontraditional means to amplify their voice and manifest their constitutional right to protest through creative anti-racist messages, street murals, and related artworks. For example, on June 5, 2020, a team of eight artists joined a group of community volunteers to create a street mural with letters 50 feet in length, spelling “BLACK LIVES MATTER” across two city blocks leading to the White House.6 Washington, D.C., Mayor Muriel Bowser commissioned the street mural as a symbolic affirmation of the Black Lives Matter movement and those “who are demanding that we have a more just criminal justice system.”7 Since then, artists and protesters in other cities have joined the movement and created street art and murals throughout the United States, including in Brooklyn, San Francisco, Austin, Cincinnati, and Charlotte. Protestors and artists are still planning to install more murals on public streets in various other U.S. cities in an effort to protest the ongoing social injustices in our country.

Protest art is not limited to the Black Lives Matter movement or racial injustice. The state of Nevada is also home to various public artworks created to address ongoing social and political issues. For example, in 2019, artist Izaac Zevalking revealed a mural in the downtown Las Vegas Arts District, protesting the current U.S. immigration system.8 The mural depicts the Statue of Liberty in handcuffs while detained by Immigration and Customs Enforcement and illustrates the “existing and escalating anti-immigration rhetoric in America.”9

Additionally, the southern border of the United States has become a hub for protest art. After the Trump administration executed an executive order to build a wall along the United States-Mexican border, artists flocked to turn the southern border wall into their canvas to display various artworks supporting immigration reform. In Flagstaff, Arizona, artist Shawn Skabelund, armed with 60 artist volunteers, installed Monarch Mimicry.10 The mural spans several feet along the border wall and includes a thousand fluorescent butterflies with a white backdrop. Skabelund was inspired to create this mural by the monarch butterfly, a symbol of hope in Mexican culture. The artwork sends the message that the United States immigration system should operate as the Monarch butterfly, allowing immigrants to “go in, work and come back just like butterflies do.”11

This surge of protest art demonstrates the powerful impact of creative expression and reveals an underlying legal utensil that artists may use to preserve their right to protest through artistic expression. The unique case of Castillo v. G&M Realty L.P.12 guides how artists of protest art can use intellectual property rights against those who deface or destroy their artworks and defend their constitutional right to protest.

Facts and Background

In 2002, Gerald Wolkoff, the owner of several New York warehouses, enlisted Jonathan Cohen, a renowned artist, to turn Wolkoff’s warehouses into an exhibition space for other artists.13 Under Cohen’s leadership, this exhibition space—known as 5Pointz—evolved into an epicenter for street art in New York. In fact, 5Pointz attracted thousands of visitors and received extensive media coverage, including vast social media buzz. In 2013, Cohen learned that Wolkoff sought to demolish 5Pointz and build luxury apartments in its place. Wolkoff deployed a group of workers to whitewash and destroy 49 of the plaintiffs’ existing artworks. Cohen and his entourage of artists, whose artworks were ultimately destroyed, successfully sued Wolkoff under a provision of the Visual Artists Rights Act of 1990 (VARA) and were awarded $6.75 million in statutory damages.14 In February 2020, the U.S. Court of Appeals for the Second Circuit affirmed the judgment.15

What Is VARA?

VARA rights extend to works of art, subject to copyright protection, that property owners may destroy or alter—a lesson Wolkoff learned the hard way. VARA is an amendment to the U.S. Copyright Act adopted in 1990 and protects a limited set of moral rights for artists. Specifically, under VARA, the United States recognizes: (1) the right of integrity and (2) the right of attribution.16 An artist’s right of integrity includes the right to prevent the modification, mutilation, or distortion of the artist’s work, and in some cases, to prevent its destruction.17 Rights of attribution generally include an artist’s right to be recognized as the author of the work, to publish anonymously and pseudonymously, to prevent attribution of the artist’s name to works the artist did not create, and to prevent the artist’s work from being attributed to other artists.18

Although the U.S. Copyright Act contains the operative sections of VARA, registration with the U.S. Copyright Office is not required for an artist to bring claims for violation of VARA. Typically, an artist would need to file a copyright application and obtain a copyright registration to assert the artist’s rights in an act of infringement. Unlike most copyright assertions, an artist can bring claims for violating the artist’s rights under VARA without having a registered copyright for the protected works. However, VARA limits moral rights protection only to culturally significant artworks set out in a narrow category of “work[s] of visual art,” defined in the statute 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.

A work of visual art does not include—

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title.19

An author of a qualifying work of visual art under VARA has the right to “prevent any intentional distortion, mutilation, or other modification of [the] work which would be prejudicial to his or her honor or reputation.”20 In addition, “any intentional distortion, mutilation, or modification of [the] work is a violation of that right.”21 The statute protects works of “recognized stature” against destruction, and “any intentional or grossly negligent destruction of that work is a violation of that right.”22 Notably, VARA does not define the term “recognized stature,” and therefore U.S. courts determine whether an artwork has achieved “recognized stature.” Courts have deemed “recognized stature” to mean meritorious work by art experts, other members of the artistic community, or some other cross-section of society.23

Key Takeaways from Castillo

Street Protest Artworks May Be Protected under VARA

As noted above, in the Castillo case, the Second Circuit affirmed that the artists’ street art adorning Wolkoff’s building constituted art of “recognized stature”—an essential requirement for invoking VARA protection against destruction. The Second Circuit provided a clear definition of works of “recognized stature” as works of “high quality” that have been acknowledged as such by the relevant community.24 The court went on to recognize that evidence from art historians, art critics, curators, and other experts supporting the quality of a work could demonstrate street art as a recognized stature warranting moral rights protection under VARA.25 In fact, widespread sharing of artwork on social media and the internet—like the Black Lives Matter and other social justice–inspired street murals—can evince high-quality stature of artwork warranting moral rights protections.26

However, despite the growing recognition of Black Lives Matter–inspired street art, including murals, illegally placed artworks will likely be subject to the property owner’s wishes. Even though a work may constitute a work of visual art, courts may still deny relief under VARA when the artwork has been installed illegally without authorization from the property owner. Put simply, the doctrine of unclean hands, which provides that one should not benefit from their crimes, may preclude an artist from asserting VARA protection for works affixed to property without the proper permissions. While the case law on this issue is fleeting, the Villa v. Pearson Education, Inc.27 case provides some guidance.

In Villa, street artist Hiram Villa filed a copyright lawsuit after Person Education reproduced his graffiti art in a video game. In response, Pearson Education argued that copyright law did not protect the artwork because Villa illegally created his graffiti artwork.28 Before the parties ultimately settled the lawsuit, the court reasoned that its analysis “first would require a determination of the legality of the circumstances under which the mural was created.”29 Accordingly, Villa leaves this inquiry—whether courts can exclude illegally created works from copyright and VARA protection—unresolved. As such, artworks affixed to property without the property owner’s permission (e.g., vandalism) may not be protected under VARA and could be subject to lawful destruction, removal, or transfer by the property owner.

Temporary Outdoor Murals May Be Protected under VARA

Temporary artworks, such as street art made from chalk, spray paint, or any other erosive materials, may be protected by VARA. In Castillo, Wolkoff argued that the artists’ artworks were temporary as a defense to VARA claims for destruction of works of recognized stature.30 The court rejected Wolkoff’s position and emphasized that the temporary lifespan of the street art was not a bar against VARA claims, holding that “[a]lthough a work’s short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognized stature.”31

Property Owners Should Take Caution Before Destroying or Altering Street Art

Additionally, attorneys should advise their property owner clients of their options to mitigate VARA liability. The Castillo court noted that Wolkoff could have explored two statutory exceptions under VARA by either: (1) entering into a written agreement with the artists prior to installation of their creative works, or (2) providing a 90-day notice and allowing the artists to preserve their artistic works before the destruction of the artworks or property.32 Accordingly, attorneys should advise their clients to employ one of these options prior to removing, altering, or destroying protected artworks from the property or streets.

The Narkiewicz-Laine v. Doyle Case

Another noteworthy case, Narkiewicz-Laine v. Doyle,33 involves the overlap with commercial landlord-tenant law, works of art, and VARA. In July 2019, the U.S. Court of Appeals for the Seventh Circuit affirmed an award of $300,000 to a tenant whose landlord destroyed the tenant’s abandoned artworks.34 In this case, Narkiewicz-Laine, an artist, leased storage space starting in 2004 from Doyle. The lease lasted about six years until Narkiewicz-Laine failed to make several payments for the storage space and the property’s utilities. Doyle thereafter cleared out the storage unit and discarded Narkiewicz-Laine’s stored property. Narkiewicz-Laine asserted that among the discarded items, Doyle destroyed 1,457 pieces of artwork that he created. In an effort to recover damages from his destroyed property, Narkiewicz-Laine brought suit in Illinois federal district court asserting, among other claims, a violation of VARA.35 Similar to the landlord in Castillo, Doyle could have taken protective measures to avoid intellectual property liability when dealing with Narkiewicz-Laine’s property. Both Castillo and Doyle illustrate that landlord-tenant disputes may indeed have underlying intellectual property issues.

Conclusion

The case law appears to extend intellectual property rights to street artists and their protests artworks affixed to other’s property. Artists of street murals may have intellectual property claims against individuals or organizations that deface or destroy their works. In addition to criminal laws prohibiting vandalism and mutilation, VARA adds an additional layer of protection for protest murals and artworks conveying political or social messages.

Endnotes

1. On May 25, 2020, George Floyd, a 46-year-old Black man, was killed in Minneapolis, Minnesota, during an arrest for allegedly using a counterfeit bill at a convenience store. His death sparked, throughout the United States and in various other countries, a series of protests against police brutality and racism.

2. See Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. Times (July 10, 2020), https://www.nytimes.com/article/george-floyd-protests-timeline.html.

3. See Jim Sergent et al., George Floyd Protests: How Did We Get Here?, USA Today (June 1, 2020), https://www.usatoday.com/in-depth/news/2020/05/29/george-floyd-protests-how-did-we-get-here/5283225002.

4. See George Floyd Death: US Protests Timeline, BBC News (June 4, 2020), https://www.bbc.com/news/world-us-canada-52921418.

5. See Protests Across the Globe after George Floyd’s Death, CNN (June 13, 2020), https://www.cnn.com/2020/06/06/world/gallery/intl-george-floyd-protests/index.html.

6. D.C. Mayor Comments on “Black Lives Matter” Road Banner and Funding the Police, NPR (June 9, 2020), https://www.npr.org/2020/06/09/873377522/d-c-mayor-comments-on-black-lives-matter-road-banner-and-funding-the-police.

7. Id.

8. Gabby Hart, Controversial Mural in Arts District Sparks Immigration Conversation in Las Vegas, News 3 Las Vegas (Aug. 5, 2019), https://news3lv.com/news/local/controversial-mural-in-arts-district-sparks-immigration-conversation-in-las-vegas.

9. Id.

10. See Nadja Sayej, “A Time for Guerrilla DIY”: How the Mexico-US Border Became a Hub for Protest Art, Guardian (Feb. 13, 2017), https://www.theguardian.com/artanddesign/2017/feb/13/mexico-us-border-wall-art-protest.

11. Id.

12. 950 F.3d 155 (2d Cir. 2020).

13. Id. at 162.

14. Id. at 163.

15. Id. at 161.

16. 17 U.S.C. § 106A(a).

17. Id. § 106A(a)(1)–(2).

18. Id. § 106A(a)(3).

19. Id. § 101 (definition of “work of visual art”).

20. Id. § 106A(a)(3)(A).

21. Id.

22. Id. § 106A(a)(3)(B).

23. See, e.g., Castillo v. G&M Realty L.P., 950 F.3d 155, 166 (2d Cir. 2020).

24. Id.

25. Id. at 162.

26. Id.

27. No. 03 C 3717, 2003 U.S. Dist. LEXIS 24686, at *1 (N.D. Ill. Dec. 8, 2003).

28. Id. at *3.

29. Id. at *7.

30. Castillo, 950 F.3d at 162.

31. Id. at 168.

32. Id. at 168–69 (citing 17 U.S.C. § 113(d)).

33. 930 F.3d 897 (7th Cir. 2019), cert. denied, 140 S. Ct. 849 (2020).

34. Id. at 900.

35. Id.

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Caleb L. Green is an attorney in Dickinson Wright PLLC’s Las Vegas office, where he focuses on his intellectual property law practice.