ASK THE ART LAWYER. Graffiti and Street Art. Part Two

By Octavio Robles, AIA, Esq.

This is part two of a two-part series that deals with the issues surrounding Graffiti and Street Art. In part one, the difference between graffiti and street art was discussed as were the issues and law associated with the unlicensed appropriation of both authorized and unauthorized graffiti and street art images. Also discussed in part one was copyright protection and exceptions based on the fair use provision under the copyright law.

Part two discusses the distinction between art and vandalism and the blur between the two. It also explores the rights and remedies over the images and actual physical works involved that the artists, the property owners and the governmental entities may have in authorized and unauthorized graffiti and street art. It will also discuss the Visual Artists Rights Act or V.A.R.A. provision of the Copyright law and how it may or may not protect graffiti and street art.

ART OR VANDALISM

Both graffiti and street art could be sub-classified as artistic expression, simple vandalism or anything in between. It is usually pretty clear to determine if the image falls in the categories of the extremes. It is the blur in between that is difficult to classify. Intended artistic expression whether it is on an authorized or an unauthorized location, will most likely be considered art by most reasonable persons. Conversely, where the intent of the person creating the image is purely to damage property, then most people would consider that an act of vandalism. The problem is that most graffiti and street art fall somewhere in between because part of the expression is the illegality of the act.

RIGHTS AND REMEDIES OF THE PLAYERS

Where a street artist is authorized by the property owner to create the image, depending on the terms of the agreement between the artist and the property owner, the parties are bound by their agreement as to payment, performance, ownership of image, reproduction and licensing rights. The only possible liability would be to the municipality having jurisdiction over the location where the art is attached in the event it violates the code or laws of the municipality. If such were the case, the property owner would be responsible to the demands of the municipality and regardless of the remedy required by the municipality, the ownership of the image would still be determined by the agreement between the artist and the property owner. Where a street artist creates an unauthorized image, the copyright to the image would be owned by the artist, who would be liable to the property owner for the cost of restoring the property to the condition it was in before the artist created the image upon it and possibly, any damages that the property owner can prove he suffered and which occurred as a consequence of the illegal act by the artist. The artist could also be exposed to criminal charges for vandalism that may be brought by the municipality. In the case where the artist is hired to produce an image by someone not authorized to have the image placed upon the property, for example, by a tenant without the property owner’s consent, both, the artist and the tenant would be liable to the property owner but the artist would have a claim against the tenant if the tenant did not disclose or lied about his authority to the artist. The liabilities described above would be separate and distinct to the rights under the copyright laws depending upon the agreement between the artist and the person hiring him. In a hypothetical case where an artist creates an image on an unauthorized location and later derives a financial benefit from the reproduction or licensing of the image, the property owner seeking to recover damages could go after the artist and the financial benefits derived from the unauthorized image.

Street artist Chris Bermudez while painting a mural depicting his branded character. Photo: Janel Kilnisan. Courtesy of the artist

Another hypothetical case involves an unauthorized image by a street artist on a movable surface, for example, a garage door. Although under the copyright law, the artist would own the image, the reproduction and licensing rights to it; the owner of the garage door would own the art itself. In other words, the garage door owner would benefit gratuitously from any benefit that accrues to him by the artist having created the image on the door. Furthermore, the owner of the door would still be able to bring a claim for damages against the artist for the cost of restoring the door and the artist could be prosecuted for vandalism by the local authorities.

ARGUMENT AGAINST RIGHTS AS A RESULT OF AN ILLEGAL ACT

There is an ongoing argument against the wisdom of allowing rights under the copyright law when the act resulting in those rights were the product of an illegal act. In other words, why should an illegal act result in a benefit. In basic contract law, a contract that as part of its terms requires a party to that contract to perform an illegal act, renders the contract unenforceable. Therefore, a contract or verbal agreement where a party to the contract is to create an image without permission on a third party’s property would fall under the category of an unenforceable contract. Alternatively, a contract or verbal agreement where a party to the contract is to create an image on private property with full consent and authority from the property owner but where it violates a municipal code or law, may be enforceable between the parties but would still be considered an illegal act and that could be raised by a party as a reason to render the contract unenforceable.

VISUAL ARTISTS RIGHTS ACT (V.A.R.A.)

The Visual Artists Rights Act of 1990 (V.A.R.A.) which was an amendment to the Federal Copyright Law, created a right for the benefit of artists that could not be imagined before the act was made into law. V.A.R.A. provided artists and other stake holders with a right to protect the physical integrity of a work of “recognized stature.” The law prohibited the alteration, mutilation and destruction of a work of recognized stature. It helps prevent the destruction of graffiti and street art that meets this standard.  This relates to the work and not to the artist but it is likely that a work will be deemed of recognized stature based on the artist who created it. One the best known and most recognized cases claiming under V.A.R.A. was the anticipated destruction of New York’s graffiti temple; Long Island’s City 5 Pointz. Various artists brought suit against the property owners, who had consented to the graffiti, to prevent them from tearing down the building. The artists lost the case because they knew, before the graffiti was created, that the building was to be demolished and therefore could not have expected that their work would survive. V.A.R.A. goes on to specifically define the work covered by the Act; paintings, prints, photographs and sculptures in a single copy or in a signed and numbered limited edition of 200 copies or less. Allowing a work of art to intentionally deteriorate is one way that property owners get around V.A.R.A. This allows them to have the art and the structure it is on to be declared a hazard and demolished. V.A.R.A. does not provide a requirement that the property be maintained.

In a 2006 U.S. Court of Appeals decision, the Court found that V.A.R.A. “does not apply to site specific art at all.” The Court’s decision left little doubt that the Act is not applicable to “site specific art.” This leaves to a fact finding determination if any given street art is “site specific” or whether it could be located in any given number of places. One-of-a-kind graffiti does not fall under V.A.R.A. regardless of how much the subject art is of a “significant stature.”

Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida and Federal Bars (Southern District of Florida). He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds master’s degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.