Visual Artists Rights Act of 1990 (VARA)

Graffiti Earns Millions

A staple of the New York City Skyline – well, maybe just an old warehouse building in Long Island City is torn down. Why does that matter – well the building featured graffiti art from hundreds of artists from all over the world representing over twenty years of artistic expression! All this art and history vanished during the night back in 2013 – without the proper permits!

So, What’s The Issue?

Great question – it would make sense that someone who owns a building – since the early 1970’s can paint it, HOWEVER, Jerry Wolkoff had been renting out the spaces within the building specifically to artists which lead this particular area – eventually known as 5Pointz – to become one of the greatest international graffiti centers. This area, neighboring MoMa PS1 and the Sculpture Center, drew in thousands of tourists yearly because of the graffiti art all over the 5Pointz space. World renowned artists left their mark in its over 20-year period. Then, it was all gone in one night.

Again – What’s the Issue?

Again, great question. Well, 21 of the artists filed suit against Mr. Wolkoff under the Visual Artists Rights Act of 1990. This act – better known as VARA, protects moral rights of visual artists. For more in depth conversation on moral rights – please refer back to our June Blog – Moral Rights – WHAT ARE THOSE? – but to briefly sum it up works of art that meet certain requirements give the authors of those works additional rights, regardless of any physical ownership of the work itself. Specifically, VARA, outlines the exclusive rights to authors including the right to claim authorship, right to prevent the use of one’s name on art they did not create, right to prevent their name being associated with any work that would dishonor their reputation, and finally a right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation.

VARA grants the author of a “work of visual art” the right to prevent the destruction of a work of “recognized stature.” Specifically, the work must be either a painting, drawing, print, sculpture, still photographic image and they have to be produced for exhibition only – i.e. display only – , and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. Further, although VARA does not define “recognized stature,” courts typically apply a two-part test: (1) the work is viewed as having merit and (2) this stature is recognized by art experts, other members of the artistic community, or some other cross-section of society. Proving this requirement might require expert witness analysis unless the work is already sufficiently recognized as important in a community.

Case at Hand

So, what happened here to give rise to a legal cause of action? Mr. Wolkoff had allowed this graffiti – at times even requesting it to decorate the building to match the evolving neighborhood. When the artists learned of his decision to tear down the building, they requested he not destroy their art, they filed for landmark status and even attempted to buy the building from him to preserve their works. It was very clear the artists did not want their work destroyed – but instead of waiting the 90 days to properly notify the artists of the demolition – Wolkoff just went ahead and had 45 works on the exterior of the building painted over with white paint. The reaction from artists, and 5Pointz fans was immediate, and photographs began to appear on social media grieving the loss of the work and lamenting the white-washing of the building.

The artists sued in 2017, Judge Frederic Block presided and in November 2017 a jury ruled in favor of the artists, and in a February 2018 opinion Judge Block fixed the damages at an unprecedented $6.75 million. Of course, the case was appealed, but in February 2020 the verdict was upheld by the Second Circuit Court of Appeals. Mr. Wolkoff – who apparently showed no remorse – is required to pay $150,000 to the artists of each of the 45 pieces of art that were found to be of “recognized stature” entitled to protection under VARA.

Why Does This All Matter?

This case is significant because it tested the protection that VARA can offer– specifically these artists argued they had a right to prevent destruction of their work. The most significant aspect of this case, outside of the maximum damages awarded, was the fact that the works were graffiti art. This case highlights the reach that VARA has into all types of art. Graffiti began as subversive self-expression, by people simply using spray paint to tag their names or symbols on various walls or subways train cars. This form of expression has now evolved into a form of art that has been found to have “recognized stature” worthy of federal protection. Obviously, there are still specific requirements to be met to meet VARA’s “recognized stature” requirements, but in the finding the 45 pieces of graffiti art were protected by VARA, the courts have confirmed that these artists’ works were important and were entitled to respect and protection.

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