Two Moral Rights Suits over Public Murals

The now-destroyed Community Faces mural in Pittsburgh depicting artists, their relatives, and people from the community. Multiple artists created the work.

Artists have brought suit in Pittsburgh and Memphis over the destruction of public murals. Both suits involve the use of blighted buildings and spaces which have come under development. As these areas character changes, or as attitudes about the public art shift, City officials and landowners have removed, distorted, or even destroyed public murals.

In Memphis, as part of a 135 mural installation organized by Paint Memphis, seven murals drew the attention of Memphis City officials, and were painted over near the end of January in 2018 as part of a “miscommunication”.

Memphis City Council officials say they have received complaints about some of the murals, and want to allow residents to vet the murals before they are erected in public spaces.

A similar dispute involving mural artist Kyle Holbrook has taken place in Pittsburgh. Holbrook alleges that property owners, the city of Pittsburgh, Allegheny County, and others have destroyed eight of his murals on walls and buildings.

Both suits use the federal moral rights law, the Visual Artists Rights Act as a basis for remedying destruction of murals and even attempting to enjoin further destruction.

Ryan Poe, Artists sue Memphis for failed attempt to scrub “satanic” murals, Commercial Appeal, April 26, 2018, https://www.commercialappeal.com/story/news/government/city/2018/04/26/artists-sue-memphis-failed-attempt-scrub-satanic-murals/555788002/ (last visited May 17, 2018).

Torsten Ove, Artist sues Pittsburgh, Allegheny County for destroying murals he created on their buildings, Pittsburgh Post-Gazette, April 30, 2018, http://www.post-gazette.com/ae/art-architecture/2018/04/30/Mural-artist-Pittsburgh-Kyle-Holbrook-lawsuit-federal-Allegheny-County-destruction-contract/stories/201804300177 (last visited May 17, 2018).

$6.7 Million Award for 5Pointz Artists

5Pointz before it was whitewashed

A federal court has held that the real estate developer Jerry Wolkoff is liable for intentionally destroying 45 works of art when they were whitewashed in 2013, amounting to a total award of $6.75 million dollars. The ruling comes as a bit of a surprise given the limited success of artists under the Visual Artists Rights Act in the past.

Jerry Wolkoff purchased the vacant factory in the 1970s in Brooklyn after manufacturing had left the area. Graffiti artists asked him for permission to display their art on the building in the 1990s, and he agreed. The building then became a haven for graffitie, even a renowned attraction. An artist Jonathan Cohen, otherwise known as Meres One, started acting as a curator of the space in 2002.

By 2013 the factory had become a valuable piece of real estate, and Wolkoff had plans to demolish the site and start a new development on the. The site had been much beloved by then, and so the artists brought suit to prevent the destruction of the art. That injunction was unsuccessful, and so Wolkoff immediately whitewashed the art, a willful act that seems to have been the primary driver for Judge Block’s scathing decision:

If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully. Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order.

The shame of it all is that since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time. It would have been a wonderful tribute for the artists that they richly deserved.

The ruling may be appealed, but the decision marks an important precedent for works of visual art and especially works of temporary art. Landscape art, graffiti, and other similar works may be impacted by the ruling.

On one hand this ruling stands as an obvious victory for the artists themselves. But taken in the broader context, will future property developers be wary about inviting graffiti artists? Perhaps street art has become so popular and ubiquitous now, that there will not be a chilling effect of future uses of derelict buildings for graffiti exhibitions like Cohen helped create.

A rare moral rights vindication in Detroit

The Visual Artists Rights Act, or VARA, has since 1990 granted artists moral rights to their works of art. At least in the United States. Other nations have granted these moral rights to their artists for far longer. These are non-economic rights which prevent mutilation or destruction of works of art, and VARA lasts for the lifetime of the artist. Unfortunately much of the language of VARA is cumbersome and has relied on judicial massaging to reach a workable framework. And even despite this massaging, the concept of moral rights have not been favorably received in most courts. So it is noteworthy when an artist is able to successfully invoke the protections of VARA.

Such appears to be the case with respect to this work, “The Illuminated Mural” which was created on the side of this building on East Grand Boulevard in Detroit in 2009. At the time, Craig had received an agreement from the owner of the building that the mural would remain there for at least 10 years. When the building was sold to a new owner, the mural was jeopardized by plans to potentially redevelop the building. So in January of 2016, Craig filed a lawsuit asking for an injunction to preserve the mural.

This week, the current owner of the building has reached an agreement with Craig that will allow the mural to remain on the side of the building.

As she told Crain’s after the settlement:

“I’m really happy we got a break-through with ‘The Illuminated Mural’ where we are able to protect the work and maintain the original contract, which was the goal,” Craig said Friday afternoon. “It’s respect for the artwork that’s there and the future of the community, and the developer as well. We reached a middle ground there that I am happy with.”

How long and what the terms of the agreement may be are not public. But this large mural has earned a reprieve.

 

  1. Kirk Pinho, Colorful 9-story mural to stay on Milwaukee Junction building under court settlement, Crain’s Detroit Business (Mar. 13, 2017), http://www.crainsdetroit.com/article/20170413/NEWS/170419900/colorful-9-story-mural-to-stay-on-milwaukee-junction-building-under [https://perma.cc/5R73-EPR5].

Judges Just Don’t Like VARA and Applied art

The Burning Man installation, "La Contessa"
The Burning Man installation, “La Contessa”

Daniel Grant reports on a recent Visual Artists Rights Act case involving the Burning Man re-purposed bus known as La Contessa.

A recent court decision in Nevada raises this question and, perhaps more fundamentally, the issue of whether or not VARA might need to be rewritten or updated to account for a broader definition of art. On June 8 of this year, a three-member Appeals Court panel affirmed a 2009 lower court ruling that called the demolition of a refashioned school bus—turned into a Spanish pirate ship on wheels and used for events as part of the annual Burning Man late-August to early-September festival in Black Rock Desert, Nevada between 2002 and 2005—not a violation of VARA, because the vehicle in its new form did not constitute fine art but “applied art.”

The 16’ x 60’ pirate ship, called La Contessa, was created by two artists, Simon Cheffins and Gregory Jones, who transformed an out-of-commission school bus into a replica 16th century Spanish galleon that included a hull, decking, masts, and a hand-crafted figurehead. La Contessa added to the sometime circus nature of Burning Man, used for rides, marching band performances, children’s treasure hunts and even two weddings. After the conclusion of the festival, the vehicle was put into storage on nearby land controlled by a woman, Joan Grant, with a lifetime tenancy of the property. However, in 2005, Grant’s home burned down and she abandoned her tenancy, which was then taken over by a limited liability company controlled by a Michael Stewart. “La Contessa” remained on the property and was not reclaimed by Cheffins and Jones the following year, and in late 2006 Stewart dismantled and then burned the wooden structure so that a scrap metal dealer could remove the underlying school bus. In 2009, the artists brought a VARA lawsuit against Stewart, losing in district court and more recently on appeal. “The focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature,” the Appeals Court ruled, although noting that the ship has “some artistic or aesthetic merit.”

In a concurring opinion, one of the three judges, Margaret McKeown, expressed concern that the ruling being issued was not workable and required “a more nuanced definition of ‘applied art’ that balances between the risk of unduly restricting VARA’s reach and the risks of turning judges into art critics.”

Daniel Grant, The More Art Changes, the More Urgent an Update to the Visual Artists’ Rights Act Is, Observer (Aug. 3, 2016), http://observer.com/2016/08/the-more-art-changes-the-more-urgent-an-update-to-the-visual-rights-act-becomes/.
CHEFFINS v. Stewart, Court of Appeals, 9th Circuit 2016 – Google Scholar, https://scholar.google.com/scholar_case?case=7731083587113005243&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.
CHEFFINS v. Stewart, Dist. Court, D. Nevada 2011 – Google Scholar, https://scholar.google.com/scholar_case?case=10972864568398950890&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.

Muddling Artist’s Moral Rights

A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California
A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California.

The National Historic Preservation Act has come to the rescue of this mural from 1976, which is badly in need of conservation. But in the process a federal court has muddled the Moral Rights of Artists moving forward. The mural on the Prado Dam near Corona, California was painted by High School students from Corona High School. The Army Corps of Engineers, which manages the dam and spillway planned to remove the mural over concerns of lead paint, tagged graffiti artists who replaced the 1776 with “TOPS”. Carolina Miranda reported for the L.A. Times in June that the image “has become one of the region’s more iconic, unofficial freeway landmarks”. Two groups sought protection in Federal Court for the mural, both the Mural Conservancy of Los Angeles, and one of the original artists and designers of the mural, Ronald Kammeyer.

Nicholas O’Donnell summarizes a recent lawsuit in California which sought to protect this mural. He comes to the conclusion that the Court managed to misunderstand some of the key provisions of the act:

First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

‘With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.’

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the “Author”—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a “lifelong” veto when it applies.  That is exactly what it is supposed to endow on the artist.

Good writing matters, both in drafting judicial opinions and also in drafting legislation. The Court and attorneys could be given at least a little reprieve from us as the act it self is terribly arcane. Congress did us no favors when drafting this piece of legislation. I have to agree with O’Donnell—when there are so few judicial opinions in the United States which take up the moral rights of artists, to miss so badly on some key provisions is a missed opportunity.

The Court ultimately upheld the injunction on the basis of the National Historic Preservation Act as the Army Corps of Engineers failed to comply with that act’s “stop, look, and listen provision” which requires federal agencies to “make a reasonable and good faith effort to identify historic properties”. But not before muddling the slowly diminishing respect for the moral rights of artists under VARA.

  1. Kammeyer v. Oneida Total Integrated Enterprises, No. EDCV15869JGBKKX, 2015 WL 5031959 (C.D. Cal. Aug. 24, 2015).
  2. Nicholas O’Donnell, New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art Art Law Report (2015), http://www.artlawreport.com/2015/11/12/new-vara-ruling-muddies-analysis-on-moral-rights-and-significance-of-site-specific-art/.
  3. Carolina A. Miranda, Court order halts destruction of Prado Dam bicentennial mural in Corona latimes.com (2015), http://www.latimes.com/entertainment/arts/miranda/la-et-cam-restraining-order-temporarily-halts-destruction-of-40-year-old-mural-on-prado-dam-20150609-column.html .

Buccafusco on Copyright authorship

Christopher Buccafusco, a Professor at Cardozo Law School has posted on SSRN a draft of his work forthcoming in the Virginia Law Review titled “Copyright Authorship”. From the abstract:

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.

After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Buccafusco, Christopher, A Theory of Copyright Authorship (September 23, 2015). Virginia Law Review, 2016, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2664891

5Pointz Suit Continues

5Pointz before it was whitewashed
5Pointz before it was whitewashed

The legal battle over 5Pointz has entered a new phase this week, as a complaint by some of the artists whose works were destroyed when the building was whitewashed has been filed in Federal Court. Though this may seem to be a new suit or new proceeding, it really should be viewed as a continuation of the dispute that has been ongoing since 2013 and earlier. Only instead of asking a court to prevent the destruction of the works at issue, now the artists are seeking compensation for the actual destruction of the works when they were whitewashed. Nicholas O’Donnell has kindly posted this new complaint on his blog, and he argues that one interesting thing to watch in the dispute, is the measure of damages: Continue reading “5Pointz Suit Continues”

Good Luck to the Cultural Heritage Law Teams in Chicago

Alexander Calder's 'Flamingo'
Alexander Calder’s ‘Flamingo’

Good luck to all the teams fighting over the Blue Pineapple in Chicago at the National Cultural Heritage Law Moot Court competition this weekend! This competition is put together by DePaul College of Law with the help of the Lawyers’ Committee for Cultural Heritage Preservation. It’s a great showcase for these soon-to-be-lawyers and this field. A bit about this year’s problem:

The 2015 Competition will focus on constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, which protects visual artists’ moral rights of attribution and integrity. The problem will address both a First Amendment and a Fifth Amendment challenge to VARA.

Cultural heritage law deals with our most prized possessions and often spans beyond national borders, and, inevitably, has become the subject of often contentious legal debates and policies. This dynamic and growing legal field deals with the issues that arise as our society comes to appreciate the important symbolic, historical and emotional role that cultural heritage plays in our lives. It encompasses several disparate areas: protection of archaeological sites; preservation of historic structures and the built environment; preservation of and respect for both tangible and intangible indigenous cultural heritage; the international market in art works and antiquities; and recovery of stolen art works.

And Chicago must be the place to be for art and cultural heritage law this weekend, as the University of Chicago’s Neubauer Collegium will also be hosting a two-day conference titled: ‘Archaeological Looting: Realities and Possibilities for New Policy Approaches’.

Student Note on the Visual Artists Rights Act

A part of the installation under dispute between Mass. MoCA and Christopher Buchel 

Elizabeth M. Bock has a student note in  the Michigan Law Review on the Visual Artists Rights Act. From the Introduction:

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is “created” under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents it to the public. This standard is more consistent with the history of moral rights. Additionally, public access is necessary to justify a treatment of art different from that of other types of property, and it is a more essential component of moral rights than an artist’s feelings of connection to his work. Finally, the legislative intent behind the Visual Artists Rights Act and the reasoning in previous judicial decisions are more accurately reflected by a public disclosure standard. Utilizing “creation” as a vesting point for moral rights is not supported by the history of the Visual Artists Rights Act and will result in uncertainty and inconsistency in future decisions.

Questions or Comments? Email me at derek.fincham@gmail.com

Student Note on VARA

The Fall 2009 issue of the Rutgers Law Review has a student comment by Seth Tipton titled:  CONNOISSEURSHIP CORRECTED: PROTECTING THE ARTIST, THE PUBLIC AND THE ROLE OF ART MUSEUMS THROUGH THE AMENDMENT OF VARA.

From the introduction:

As will be discussed, VARA falls woefully short of granting meaningful and broad moral rights to artists. Most notably, deceased artists do not benefit from any of the protections of VARA. As such, it is imperative that Congress amend VARA to make the right of attribution perpetual and grant community standing to enforce
those rights where the artist is deceased. This Note will discuss the legal solutions that the amendment of the VARA could provide to ameliorate the hazards of the aforementioned issues of misattribution, increase the strength of American moral rights legislation, and protect and strengthen the role of museums in American
society.
Part I of this Note examines the inherent risks associated with assigning authorship to pieces of art. Although a highly important part of the sale and scholarship of art, this Part discusses the weaknesses of art connoisseurship. Also, this Part considers how those troubled methods of attribution cast considerable uncertainty in the assignation of authorship for the artwork of long-deceased authors. Part II maps the development of both the legal doctrine arising from misattribution and some of the solutions crafted by auction houses in response. This Part discusses the inadequacy and unpredictability of current common law doctrines developed to deal with misattribution. 
Part III introduces and explains the philosophical and intellectual underpinnings of moral rights and tracks the development of moral rights legislation in Europe. This Part discusses the inherent personal nature of moral rights and the key distinction between moral and economic rights.

Part IV goes on to introduce and explain state preservation statutes and the emergence of moral rights in American law. This Part also discusses the adoption of VARA. This Part explains that VARA’s
stated goal of protecting the artist’s honor and reputation is unattainable in light of its limitations when compared to European models.

Part V of this Note is a call on Congress to amend VARA. This Part posits that the European model of perpetual moral rights is a form of moral rights that should be implemented in American law. This Part goes on to suggest that perpetual moral rights could be combined with examples of community standing, readily available in state cultural preservation statutes throughout the United States, to vastly improve the actual protections VARA affords.
Lastly, Part VI revisits the solutions created by art auction houses to respond to liability for misattribution. This Part discusses how this model could be quickly and easily adapted as a pragmatic method of remedying a suit brought under an amended VARA. Armed with these examples and their success, Congress could
recreate a VARA that could ensure the protection of the moral rights of deceased artists, safeguard the societal position that museums occupy, and ensure that the public is given access to trustworthy and
objective information.
Questions or Comments? Email me at derek.fincham@gmail.com