…for destruction of their work on a building which was demolished by the property owner.
In a landmark ruling, 21 New York graffiti artists sued Gerald “Jerry” Wolkoff, the owner of a warehouse known as Pointz Warehouse. Wolkoff invited local artists to show case their art on the building. Over twenty years 1,500 artists painted at the site. The building was visited by many painters and tourists. As a result of the art works, the property appreciated in value from $40 million to $200 million.
The owner had the building demolished in order to erect deluxe apartments. In 2013, the artists tried to bring an injunction to stop the demolition but the judge ruled that Wolkoff could build on the land in order to realise its value. Without giving the artists any warning to remove their work, Wolkfoff whitewashed the building. The artists brought a claim against Wolkoff under the US Visual Artists Rights Act 1990 (VARA). This law grants visual artists limited rights over work they have created but do not own. To be entitled to monetary damages their art:
- Must be considered to be of a recognised stature; and
- If destroyed or mutilated would be prejudicial to the artist’s reputation.
Bearing this in mind, the judge considered whether Wolkoff:
- distorted or mutilated the works in a way that was prejudicial to the artists’ honour or reputation; and
- destroyed a work of art that had obtained a recognised stature.
The judge ruled against the property owner and he was fined the maximum penalty of $6.7 million dollars. The judge accepted the artworks were of a recognised stature and should therefore be protected under VARA. He explained that these works did not need to be cited in public articles or considered to be masterpieces in order to fall within the definition of recognised stature. It was adequate for the artists’ achievements to be acknowledged through social media presence, teaching positions and private and public commissions.
The judge also examined Wolkoff’s behaviour. He noted the artists were not issued with the 90-day notice required to be given by VARA before the building was demolished. The judge concluded this was not acceptable. An argument put forward by Wolkoff’s lawyers was that the art works were not intended to be permanent and therefore could not be protected under VARA. In response however the judge reminded him that VARA protected both permanent and temporary art. He explained that this was an important provision of the law particularly when a piece of artwork is considered to be temporary only because of the property’s owner’s intention to remove it.
This decision shows how the perception of art is changing and is the first case in which graffiti has been considered to be art of a “recognized stature” in the US. The substantial amount of damages awarded in this case emphasizes the consequences of disregarding legal provisions.
In the UK, there is no specific law that enables a graffiti artist’s work on a building to be preserved. Academics have argued murals by the graffiti artist Banksy form part of Britain’s heritage and should therefore be given legal protection. In 2011, one of his famous pieces, Gorilla in a Pink Mask was scrubbed by cleaners in Bristol. Research is being done at the Bristol University on whether the work of well-known artists should be protected from being painted over or rubbed away. A possible way to do this could be to submit an application for the work to be listed under the Listing Buildings Acts on the grounds that works of artists such as Banksy’s are of cultural and financial value. However, a local authority could use its power to issue a notice to have the works removed on a public building if it feels that it is detrimental to the landscape of a particular area. On the other hand the protection of art work on private property depends on the agreement between the owner and the artist.
It is important to understand what your rights and obligations under agreements you have entered into. If you are unclear on what these are or should be, if you are considering entering into an agreement, or if you would like your commercial agreement reviewed please contact Tony Fisher on [email protected].
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