The Visual Artists Rights Act of 19901 (VARA) grants the authors of visual artworks the “non-economic ‘moral rights’” of attribution and integrity, a “statutory first in federal copyright law.”2 The right of attribution is exercised to “claim [or] . . . deny authorship,” and the right of integrity allows artists “to prevent or . . . recover damages for the intentional [interference]” with the substantive nature of a work.3 An artist “retains these [moral] rights throughout [their] lifetime,” potentially well after they have ceded ownership of the physical copy of the relevant artwork, a feature that has been described as “revolutionary.”4 VARA’s recognition of moral rights in the artist accordingly creates significant tension with traditional conceptions of control vested in the owners of real property5: for example, an owner of a gallery wall on which an artist has painted may find that the artist’s right to her painting limits the owner’s right to modify that wall. Recently, in Castillo v. G&M Realty L.P.,6 the Second Circuit extended VARA’s moral rights protections to temporary works of art, holding that aerosol art7 in a warehouse exhibition space had achieved “recognized stature” under VARA.8 The court’s analysis, beyond concluding that temporary art could achieve recognized stature under VARA, indicated a willingness to extend the same moral protections to unauthorized art,9 but ultimately left the issue unresolved.
In 2002, “distinguished aerosol artist” Jonathan Cohen made an oral agreement with Gerald Wolkoff, the owner of several warehouse buildings in Long Island City, New York, to renovate them, creating “an exhibition space for artists.”10 With Cohen at the head, the space — once a target for “distasteful graffiti”11 — became “a major global center for aerosol art” that “attracted thousands of daily visitors.”12 5Pointz, as the site came to be known, developed an artistic norm of “creative destruction,” whereby art in certain areas would remain for long periods or permanently, but in others would be “painted over” in “days or weeks.”13 Over the course of eleven years, the site displayed “approximately 10,650 [distinct] works of art.”14
In May 2013, Cohen discovered Wolkoff’s plan “to demolish 5Pointz and . . . build luxury apartments on the site,” for which Wolkoff had already requested municipal approval.15 A group of artists, led by Cohen, filed a lawsuit against Wolkoff under VARA to prevent the demolition.16 The artists secured a temporary restraining order, but upon its expiration the court denied their request for a preliminary injunction.17 Immediately after the injunction was denied, and despite potential forthcoming directions from the court, Wolkoff “banned the artists from the site” and directed several workmen to whitewash all the art.18 With their work destroyed, the artists sought monetary damages under VARA as their only remaining recourse.19
The trial, which involved “voluminous documentary evidence” and dozens of witnesses, focused on “whether the artwork had achieved recognized stature,” and if so, what the value of each work was.20 The district court held that forty-five of the works at issue in the case “had achieved recognized stature,” and that “Wolkoff had violated VARA by destroying them.”21 Concluding that it “could not reliably fix the market value of the destroyed paintings,” the court elected to award statutory damages instead.22 The district court found that Wolkoff had violated the statute willfully, acting out of “pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art.”23 Accordingly, it awarded the plaintiffs $150,000 for each of the forty-five works — the maximum amount of statutory damages — totaling $6.75 million.24 Wolkoff appealed.25
The Second Circuit affirmed on all fronts.26 Writing for a unanimous three-judge panel, Judge Parker27 dealt first with Wolkoff’s challenge to the artworks’ recognized stature under VARA — the “crux of the parties’ dispute.”28 The court held that a work is of recognized stature when it is “one of high quality, status, or caliber that has been acknowledged as such by a relevant community.”29 The “relevant community,” it continued, would usually be “the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts.”30 The court rejected the claim that temporary art, like most of the works at 5Pointz, could never achieve recognized stature.31 Noting that VARA’s text does not expressly adopt “permanent” or “temporary” classifications in its “highly specific definition of visual art,” the panel was unwilling to read in an additional permanence requirement.32 The opinion highlighted “street art[’s]” recent emergence as a “major category of contemporary art,” using famous street artist Banksy’s work as an example of the kind that would certainly possess recognized stature, even if it were temporary.33 Finally, the court stressed that Congress was conscious of “durational limits” on protections of works when it drafted the law, as it included an exception to the statute’s provision barring “distortion, mutilation, or other modification” for damage owing to “gradual erosion” or other degradation.34
The Second Circuit similarly dismissed Wolkoff’s argument that because the artists were “aware that the 5Pointz buildings might eventually be torn down,”35 they should have been prepared for the possibility that their work might be destroyed.36 If the artwork could be removed, VARA mandated that Wolkoff provide the artists with notice and ninety days to remove it.37 If not, the statute required him to secure “a written instrument” acknowledging that the artists’ installing their work on the property left it subject to destruction, “by reason of its removal.”38 He had done neither.39
The court then affirmed the district court’s finding of willfulness40 and upheld its decision to award the maximum statutory damages.41 It concluded by contrasting Wolkoff’s conduct, including his “conscious material misrepresentation[s]”42 at trial, with the “dignity, maturity, [and] respect” with which the artists had conducted themselves.43
The Second Circuit’s opinion resolving the temporality dispute lauded aerosol art’s rise to artistic and cultural prominence,44 but the “handshake deal”45 that brought about the creation of 5Pointz made this case an outlier.46 It effectively masked an unresolved conflict between copyright and real property rights, hinging on the owner’s consent to create art on their property. The legal line between street art and what might otherwise be considered vandalism is permission.47 The unsanctioned, transgressive nature of art nonetheless remains a central element of the craft for many street artists, including those cited approvingly by the court as creating works with recognized stature.48 Thus, although the Second Circuit’s reasoning in Castillo evinces an inclination to interpret VARA as protecting unauthorized artworks, whether moral rights protections will actually be applied to such works remains an open question.
To understand the significance of this unresolved question, one need only consider that the moral rights conferred by VARA are distinct from ownership of the physical artwork itself. The section of VARA pertaining to the transfer and waiver of artists’ moral rights in their art supports their independence from legal title.49 The language is clear: “The rights conferred by [the other sections of the statute] may not be transferred,” except via “express agree[ment]” by the author to do so, and “[t]ransfer of ownership of any copy of a work . . . shall not constitute a waiver of the rights conferred” by the Act.50 As such, VARA grants artists moral rights protections in their work even in cases where the artist does not possess title to the art, including after legal sale.51 This creates a set of strange and counterintuitive incentives in the areas where the interests of the artist and the erstwhile property owner intersect. For example, if an artist sells her painting to an art collector, her perpetual moral rights under VARA allow her to prevent the collector from modifying or altering the work even after she transfers title.52 That being the case, another question may occur to the property owner. If an artist can possess such moral (and legally enforceable) rights to an artwork after transferring title to another, what keeps them from exercising the same rights to a work they never had title to in the first place?
Imagine that the hypothetical artist, instead of selling her art to the art collector, spray-paints her art on the gallery’s wall without the collector’s consent. It may be assumed that the artist, whose act of creation is unlawful, does not possess legal title to the work.53 But VARA expressly does not require artists to have title to assert moral rights,54 leaving the question of possessory interests in unauthorized art unresolved. Seeing as VARA’s text does not include an exception for art created illegally, and courts have expressed a disinclination to read additional limiting principles into the Act,55 it seems, at minimum, possible that moral rights protections could apply to unauthorized art.56
Related anxieties over this possibility have been expressed both in the academic literature on the subject and in the courts.57 Indeed, there is already apparent disagreement on this question at the district court level. In English v. BFC & R East 11th Street LLC,58 the United States District Court for the Southern District of New York issued the strict admonition that “VARA does not apply to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question.”59 The Northern District of New York, by contrast, distinguished English in indicating that unsanctioned removable artwork may be subject to VARA protections, and cast further doubt on the basis for the Southern District’s holding, stating that “there is no basis in the statute to find a general right to destroy works of art that are on property without the permission of the owner.”60
Though the Second Circuit did not directly address VARA protections for such unauthorized art in Castillo, or indicate that the issue was before the court at all, several elements of the opinion’s analysis belie that limited frame. The circuit’s opinion, and the district court decision it reviewed, both placed great emphasis on the artistic community’s judgment of the quality of a work, identifying that collective acknowledgment as the determining factor in the recognized stature inquiry.61 The court also took care to note Justice Holmes’s classic nondiscrimination principle, “that ‘[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [visual art],’” emphasizing the cruciality of expert testimony from the artistic community in drawing conclusions as to recognized stature.62 Street art’s rise in prominence has occurred not only in popular culture but in the world of high art as well.63 Following this line of reasoning, the value the court places on the artistic recognition of street art — much of which remains illicit64 — appears to weigh in favor of the application of moral protections to unauthorized art.
Further, the court in Castillo cited to Banksy as the kind of artist whose work would likely receive recognized stature under VARA65 — an artist whose body of work consists almost entirely of unauthorized art.66 Known for “stenciling irreverent politically-charged street art pieces on walls around the globe,” Banksy cut his teeth painting works on the walls of public and private buildings without seeking permission from the owners.67 Though his works have grown in popularity to the degree that their appearance on an unwitting property owner’s wall would likely be more of a boon than an annoyance, citing his work in the VARA context nonetheless sends a relatively straightforward message. The court’s use of Banksy’s work as emblematic of art having recognized stature gives a strong indication that other unauthorized works could receive VARA moral rights protections.
Having resolved the admittedly important temporality question about the extent of VARA’s protections for street art, the Second Circuit has thus far left the more complex question of permission, masked by the facts of Castillo, undetermined. But the panel’s reasoning hints at the viability of moral rights protections for the unauthorized work of street artists. Without the clear guidance of an explicit appellate decision, property owners and street artists will continue to bear unnecessary additional costs.68 Lacking clear direction on whether they have authority to remove unsanctioned artworks that appear on their property, owners could be placed in the decidedly awkward position of having to individually contract with oft-elusive street artists to avoid potential liability.69 Street artists, particularly those whose works are recognized as culturally significant, will have a limited understanding of whether their work will be protected.70 The stakeholders here deserve clarity. An appellate holding on the protections VARA affords to unauthorized artworks may not motivate street artists to reveal their identities, but it will, at minimum, bring light to how they should bargain to protect their work.