Hi, and welcome back to Legal Geek. This week, we review a recent federal appeals court decision that applied the U.S. law on copyright moral rights to the tune of nearly $7 million dollars, and the potential Supreme Court future for this law.
Copyright laws vary from country to country, but some underlying concepts are to be respected by all countries when they sign on to certain international treaties like the Berne Convention that give authors and other creative types reciprocal copyright rights in other countries on those treaties. One of these underlying concepts is the moral rights protection offered in a copyright. Moral rights are generally an author's inherent rights beyond economic exploitable rights in their creative works, including the right to claim authorship of a work and the right to object to any distortion or mutilation of the artist's work.
When the U.S. signed onto the Berne Convention in 1991, the U.S. copyright law was amended to recognize some moral rights for the first time. The law is known as VARA, the Visual Artists Rights Act, and VARA prohibits art of a so-called recognized stature from destruction or mutilation. This law was pretty obscure and not referenced often in court much until this recent decision we cover today.
5Pointz was a famous graffiti space in New York City, and the building owner had allowed these warehouses to become a place where artists congregated and made street art for many years before deciding to convert the space to residential condos and apartments in the early 2010's. A legal battle ensued between 5Pointz artists and supporters and the building ownership over whether the buildings could be demolished. And on the night when a court order was granted to the building owner against a temporary restraining order stopping his activity, he had painters whitewash all the art and cover it with white paint overnight. This caused much dismay from the artist community and led to further lawsuits.
More specifically, several of the artists grouped together and made a claim under VARA that the sudden whitewashing of the graffiti art infringed their copyright moral rights. A Brooklyn trial court agreed with the artists and applied a $6.75 million dollar statutory damages award against the building owner for destroying 45 specific pieces of graffiti art. The Second Circuit court of appeals confirmed this decision this year, finding the damages award and the finding that the owner's wrongful conduct was willful were correct. To this end, the sudden overnight whitewashing instead of allowing artists to photograph or recover their works in the months remaining before the building was actually demolished was a willful act that violated the artist's rights under VARA.
The building owner plans to appeal for Supreme Court review, and if they take up the case, it would be the first time VARA is in the Justices' purview, while also being the first time VARA was enforced to protect graffiti street art. There's no real split of opinion in the regional appeals courts on this emerging issue, so unless the Supreme Court thinks moral rights have been stretched too far by VARA so as to be unconstitutional, it seems unlikely that the petition for review will be granted.
The Bottom Line is: sometimes laws have obscure provisions that can protect people when all normal legal remedies seem inadequate. Thanks to international copyright treaties, U.S. authors and artists have some moral rights protecting their works from destruction. Even graffiti can become an art form of so-called recognized stature, thereby being protected from whitewashing and other destruction, which may be a real nasty surprise for others developing real estate in urban settings in the future.
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