In recent art world news, last week a federal district court in New York ruled the Visual Artists Rights Act of 1990 (“VARA”), a federal law protecting visual artwork from destruction, covered the graffiti artists’ aerosol artwork on a property owner’s warehouse buildings.  VARA amended existing copyright law to protect artists’ moral rights of attribution and integrity.  Intentional destruction, mutilation, or modification of a work of visual art violates that integrity.  The court determined that the destruction qualified for heightened damages because it was a willful violation.

The court’s ruling may be a warning to property owners who permit street artists to create art on abandoned properties.  For nearly two decades, property owner Gerald Wolkoff allowed a group of graffiti artists to occupy what has become known as the 5Pointz Aerosol Art Center in Long Island City in New York.  When Wolkoff moved to develop the property, the group of 21 street artists sued and sought a preliminary injunction.  The court had issued an order denying preliminary injunctive relief to the artists, but stated that a written opinion would soon be issued.  In the eight days between the court’s denial of the artists’ request and the issuance of the opinion, Wolkoff painted over the artwork.

Under VARA, if a work is part of a building to be torn down, the artist must have an opportunity to remove it, but Wolkoff’s hasty whitewashing denied the artists that opportunity said the court.  The court rejected Wolkoff’s argument that any damages should be tied to a valuation of the works.  The court said that deterrence of such behavior was “perhaps the most important factor” of the five relevant factors it considered in deciding the case.  “Wolkoff remains undeterred, and unrepentant that his thoughtless act violated the law and had a devastating impact on people he claims he was trying to help.”

According to the court,

“[i]f potential infringers believe that they can violate VARA at will and escape liability because plaintiffs are not able to provide a reliable financial valuation for their works, VARA will have no teeth.”

The court determined that all five relevant statutory factors (i.e., the infringer’s state of mind; the expenses saved, and profits earned, by the infringer; the revenue lost by the copyright holder; the deterrent effect on the infringer and third parties; and the conduct and attitude of the parties) supported the maximum award of statutory damages under VARA.  Thus, the court awarded the artists $150,000 for each of the 45 works “wrongfully and willfully destroyed” for a total statutory damages award of $6,750,000.

For a detailed background and history of the aerosol art litigation and the entirety of the court’s decision, click here.

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