Can VARA Help the Black Lives Matter Cause?

A discussion of the Visual Artists Rights Act, and its potential impact on the vandalism of
Black Lives Matter art, by intellectual property attorney William T. McGrath

 

I was born and raised in Oak Park. I lived there until after college, and was a true “Dooper” (Dear Old Oak Parker). My family roots run deep in Oak Park.  I even drove for Blue Cab one summer, long ago.

But old ties are sometimes the strongest, and I was disturbed to read that a recently installed Black Lives Matter street mural on Scoville Avenue, a few blocks from where I grew up, was vandalized during the night of July 7, just two weeks after its completion. The street mural is a multi-colored 130-foot-long street painting of the words “Black Lives Matter” designed by Cullen Benson. The mural was created with the approval of the Village and funded by the Oak Park Area Arts Council. The vandals defaced the mural by painting over some of the letters in the word “BLACK” and modifying others to change the word to “ALL,” not only distorting and mutilating the mural, but also completely pillaging the message.

The vandalism in Oak Park was not an isolated event. News accounts from around the country have reported incidents of Black Lives Matter murals being defaced.

As a practitioner and professor of copyright law, I frequently deal with issues relating to law and the arts, including a part of the copyright law called the Visual Artists Rights Act, or “VARA.” A recent call from Jan Feldman of the Chicago Lawyers for the Creative Arts led me to consider this question: Can VARA serve as a means to deter the defacement of Black Lives Matter street art?

What is VARA?

Copyright law has long protected the visual arts, but that protection only prevents unauthorized reproduction, distribution, or making derivatives of the art. These and a few other types of exclusive rights provide a copyright owner with “economic rights.” Traditional copyright law does not, however, provide an artist any rights relating to the destruction or mutilation of the art object itself. Those are a different type of rights known as “moral rights,” which, although well known in Europe, were long ignored in the United States. With the passage of VARA in 1990, visual artists in the U.S. suddenly enjoyed a new set of rights intended to protect the artistic works themselves as well as the reputations of artists. In the parlance of moral rights, these are the rights of “attribution” and “integrity.”

The legislative history of VARA notes that the visual arts “meet a special societal need” and that “it is paramount to the integrity of our culture that we preserve the integrity of our artworks . . . .” The safeguards of VARA are intended to “enhance our cultural heritage.”¹

The most important right created by VARA is the right of integrity. There are two types of integrity rights in the statute. First is the right to prevent any distortion, mutilation, or modification of the work a visual art, but only if it is intentional and would be prejudicial to the artist’s honor or reputation. The concept of prejudice to one’s honor or reputation has been described as “inherently murky.”² One of the leading cases discussing prejudice under VARA explained that an artist’s honor or reputation would be harmed if the modified artwork “presented to viewers an artistic vision materially different from that intended by the artist.”³

The integrity right also provides a right to prevent destruction of a protected work. This right exists only if the work is “of recognized stature,” and if the destruction is intentional or grossly negligent.

Could Cullen Benson State a Viable VARA Claim?

To assess whether the Oak Park mural might find protection under VARA, we need to answer several questions: 1) is the mural a “work of visual art” as defined in the Act? 2) Is the work copyrightable? 3) Was the work mutilated or distorted in some way? 4) Was the mutilation intentional? 5) Did the mutilation harm the artist’s honor or reputation, and 6) Do the vandals have any viable defenses?

Some of these are easily answered; others are a bit more complex. From my seat in the balcony, it looks like the Oak Park artist would have a good chance of establishing that his rights under VARA were violated. There is, however, one big impediment to bringing a successful action against the vandals in this case. The vandals perpetrated the act under cover of darkness, and at last report, the police have no suspects. At present, there is no one to sue.

Undaunted, like a law school class, we shall proceed with the hypothetical legal analysis.

What Type of Works are Protected by VARA?

Not all types of creative works are protected by VARA. Notably, the statute does not protect motion pictures, literary works, music, or architecture. VARA protects only a category of works called “works of visual art.” This term does not include the entire array of artistic works protected by copyright. Works of visual art include only two types of artistic works. The first type is a “painting, drawing, print, or sculpture, existing in a single copy, or in a limited edition.” The second type of protected work of visual art consists of limited-edition photographic images “produced for exhibition purposes only.” The street mural on Scoville Ave. is a painting. It falls clearly into the first category of protected works.

There is another threshold requirement for VARA protection — the work must be protected by copyright. Paintings and drawings are generally protected by copyright, but they must be in fixed form and they must have at least a modicum of creativity. The degree of artistic creativity required is not high. In the Oak Park street mural each of the large letters contained a painted multi-colored geometric design, which probably would meet the creativity requirement. Artistic judgment was used in creating the interior design of each letter and selecting the array of colors. The overall design appears to meet the low threshold of creativity for the work to be copyrightable.

In contrast, one of the first highly recognizable Black Lives Matter street paintings was in Washington D.C. The painting, commissioned by Washington Mayor Muriel Bowser, spans two blocks of 16th Street, the road leading to the White House. The painting consists of oversized block letters painted vibrant yellow on the black pavement. As eye-catching as it may be (it can be seen on satellite photos from space), that painting would probably be considered not copyrightable, as it consists only of standard block letters painted in a single color. Though the street painting is effective in presenting the message, I suspect the Copyright Office would find that it lacks sufficiently original design elements to qualify for copyright protection.

Was the Artist’s Integrity Right Violated?

The type of vandalism that occurred in Oak Park and that we are seeing at other locations of Black Lives Matter art around the country falls neatly into the category of distortion or mutilation. While the mural was not destroyed (in fact, the Village promptly restored the painting), it was mutilated and distorted in obvious ways. The first and last two letters of “BLACK” were obliterated with dark paint and two capital “L”s were added to create the word “ALL.” Other random smaller scale markings and words were painted on the mural as well. The act was indisputably intentional and carried out with malign purpose.

Was this mutilation prejudicial to the honor or reputation of the artist? An act of vandalism inherently disrespects the artist and demeans the art and the message conveyed. The artist and his message were treated with disdain. The distortion of the art presented to viewers a vision materially different from that intended by the artist.

In sum, it appears that the vandals intentionally mutilated a copyrightable work of visual art in a manner that was prejudicial to the honor or reputation of Cullen Benson. These are the essential elements of a VARA claim. The next question is whether the vandals could mount some defense that might exculpate them.

Is Street Art Protected by VARA?

Do the vandals have any viable defenses? They might focus on the narrow scope of VARA to argue that the statute was intended to preserve fine art and was never intended to protect street art. The Act excludes from coverage posters, applied art, merchandising items, and advertising or promotional materials. In the past, some assumed that VARA only covered the type of art that might appear in museums. The question arose whether such “low brow” art qualifies for VARA protection. It was also argued that street art is by nature impermanent and the purpose of the Act is to preserve art.

Those questions were definitively answered recently in a case known as the “5Pointz” case. 5 Pointz was the name of a compound of twelve dilapidated warehouse buildings in Queens owned by a developer named Gerald Wolkoff. The venue was a hangout for “taggers” and the building were covered with unsightly graffiti. In the early 2000s, an aerosol artist named Jonathan Cohen approached Wolkoff with a proposal that would make Cohen the curator of the space to convert it into a workspace for talented street artists. The goal was to transform the brick walls into a repository of high-quality aerosol art. Under Cohen’s artistic management, 5Pointz evolved into a canvas for spectacular aerosol art paintings. The site had high visibility and became extremely popular.

Eventually, Wolkoff decided to develop the property for two large apartment complexes, which would require demolition of the buildings. Cohen and other artists filed a VARA suit in 2013 in the federal court in Brooklyn to prevent the destruction of the art. At an incipient stage of the litigation and without notice to the court or the artists, Wolkoff whitewashed the murals in the dark of night. After years of litigation, the district court found that the whitewashing of the murals violated VARA, and awarded a total of $6.75 million in statutory damages to the artists for the destruction of 47 separate work of visual art.⁴

On appeal, in Castillo v. G&M Realty L.P., the Second Circuit affirmed the award, holding that the murals at 5Pointz were protected under VARA. It rejected Wolkoff’s argument that the murals at 5Pointz did not deserve to be protected under VARA, commenting that “in recent years, ‘street art,’ . . . has emerged as a major category of contemporary art.”⁵

The case recognizes several principles that address the scope of protection of VARA. First, it makes it clear that not all art hangs in museums. It debunked the notion that only highbrow art can be protected by VARA. Second, it established that street art is not excluded from VARA protection merely as a result of the temporary nature of the art. The statute does not categorize artworks as permanent or temporary. It identifies specifically which types of artworks are excluded from protection, and “temporary” or “ephemeral” artworks are not on the list. As the district court noted, “there is no legal support for the proposition that temporary works do not come within VARA’s embrace.”

The Oak Park vandals might assert a First Amendment defense on the theory that their act involved political expression. The Supreme Court, however, has not in the past given the First Amendment a broad scope in copyright cases as an independent defense to infringement. The Court has noted that in copyright cases the First Amendment is adequately accommodated by the fair use doctrine and the fundamental principle that copyright does not protect ideas. The Court has also noted that while the First Amendment protects an individual’s right to make one’s own speech, “it bears less heavily when speakers assert the right to make other people’s speeches.”⁶ “All Lives Matter” proponents have First Amendment rights, but they are not exercised by mutilating someone else’s First Amendment expression. Those rights would be best exercised by getting permission to paint a large “All Lives Matter” on East Avenue, just one block away from the “Black Lives Matter” mural.

How Would a Lawsuit Help a Black Lives Matter Artist?

How would all this legalism really help?  After all, as Taylor Swift reminds us, the “haters gonna hate.” In most cases, street art has no easily ascertainable monetary value, so there would normally be no actual damages. That’s why the court in 5Pointz did not award any actual damages. Injunctive relief would be of no value in most street art vandalism cases, as the mutilation typically takes place without warning. But VARA has another potent remedy: statutory damages. The Act allows the court or jury to award statutory damages in the range of $750 to $30,000 for each work mutilated or destroyed. If the violation is willful, that range can go up to $150,000 for each work. In 5Pointz, the court found the violations to be willful and awarded the maximum amount for each of the 47 murals. Attorney’s fees are also available to the prevailing party in the court’s discretion, but that is a double-edged sword – a prevailing defendant is also eligible to recover attorney’s fees.

Statutory damages are intended not only to compensate a plaintiff, but also to deter reprehensible conduct. It would only take one sizeable award in a case of mutilation of a Black Lives Matter mural to make even the most ardent vandal think twice.

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Of course, this is but a hypothetical exercise that would likely never have been contemplated but for the turbulent social circumstances that face the nation. Our hope is that the hypothetical exercise never has to evolve into an actual task, and we can focus on Congress’s aspirational statement that “it is paramount to the integrity of our culture that we preserve the integrity of our artworks.”

 

William T. McGrath
August, 2020

 

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¹H.R.Rep. No. 101-514, at 6 (1990).

²Cohen v. G&M Realty, 320 F.Supp.3d 421, 441 (E.D.N.Y. 2018).

³Carter v. Helmsley-Spear, 861 F.Supp. 303, 324 (S.D.N.Y. 1994) (Carter I).

⁴Cohen v. G&M Realty, 320 F.Supp.3d 421, 441 (E.D.N.Y. 2018).

⁵Castillo v. G&M Realty L.P., 950 F.3d 155, 162 (2d Cir. 2020), as amended (Feb. 21, 2020).

⁶Eldred v. Ashcroft, 537 U.S. 186 (2003).