Interesting Legal Issues Surrounding Street Art

 A mural by  RUMTUM  in Denver’s RiNo neighborhood.

A mural by RUMTUM in Denver’s RiNo neighborhood.

Walking around Denver’s various, vibrant neighborhoods, it’s amazing how many buildings’ walls are alive with murals. These large-format art projects are beautiful to look at, but they also belie a number of interesting legal issues. For example, who actually owns the artwork (the property owner or the artist), and when can an owner cover it up.

Ownership Rights in Street Art

The intellectual property right in a mural is a copyright. As I’ve discussed before, copyright is a unique form of intellectual property, existing the moment an artist expresses a creative idea in a fixed medium (known as the “idea-expression dichotomy”). Under the United States Copyright Act, one of the six exclusive rights belonging to a copyright owner is the right to create derivative works. 17 U.S.C. § 106(2). For any street mural, the artist therefore maintains a copyright in that work as soon as it’s up, as well as the sole right to further merchandise it. These rights in no way impede, however, the property owner’s ownership of the property, including the “canvas” on which the mural is painted. The owner still owns the wall, which includes that particular “copy” of the work. The owner could therefore hypothetically cut out the wall and sell that copy of the mural if it wanted. The owner cannot, however, create merchandise (e.g., t-shirts, posters, etc.) based on reproductions (derivative works) of the mural (thereby selling the copyrighted art and not the wall itself).

The only exception to these general rules exists where the artist produces the mural under a written “work made for hire” agreement. The law regarding works made for hire is nuanced, but it essentially permits the copyright author to be someone other than the artist pursuant to a written contract. I typically advise clients to ask for a payment premium above and separate from the commission in exchange for any work for hire agreement.

Enter the Visual Artists Rights Act

Because the property owner owns the wall, but the artist owns the copyright, interesting issues arise regarding when and how an owner may cover up or otherwise amend a mural. In 1990, Congress passed the Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. VARA protects “works of visual art” such as paintings, sculptures, drawings, prints, and photographs. VARA does not protect promotional or advertising materials. See, e.g., Pollara v. Seymour, 206 F.Supp.2d 333 (N.D.N.Y. 2002). Courts handling VARA disputes have generally found street murals to be within VARA’s scope of protection. See, e.g., In re G&M Realty, 13-CV-5612(FB)(RLM) and 15-CV-3230(FB)(RLM) (E.D.N.Y. Feb. 12, 2018).

Congress intended VARA to provide protections for an artist’s “moral rights” by granting an artist a right to claim authorship in the artwork, a right to prevent others from using the artist’s name for any artwork the artist did not create, precluding the “intentional distortion, mutilation, or other modification” of a visual work that would prejudice an artist’s “honor or reputation,” and protecting against “destruction of a work of recognized stature.” 17 U.S.C. § 106A(a). VARA protections last for the life of the author or the life of the last living author of a joint work. 17 U.S.C. § 106A(d).

Limitations of VARA

Natural modifications to a work resulting from aging, inherent characteristics of the art materials, or lighting or placement do not generally constitute modification or distortion under VARA. 17 U.S.C. § 106A(c). Congress also specifically made any rights granted under VARA subject to section 17 U.S.C. § 113(d), which addresses problems arising with works fixed to a building. Under section 113(d), if a building owner wants to remove a work, the artist's rights to prevent removal apply unless: (1) the building owner has made a diligent, good faith, but unsuccessful attempt to notify the artist of the owner’s intention to remove the work; or (2) the artist either failed to remove the work or to pay for its removal within 90 days after receiving notice from the owner. A “diligent, good-faith attempt” requires notice by registered mail to the artist at the most recent address of record with the Copyright Office’s federal register. These requirements have led to much criticism of VARA as it relates to street art under the argument it permits real estate owners far too easy a means of removing street art to make way for new development. See, e.g., here.

 

Artist Victories under VARA

To date, artist victories under VARA have been relatively rare. There are, however, a couple of notable exceptions. In 2008, American muralist Kent Twitchell settled a case against a real estate company, its founder, and the United States government for a reported $1.1MM for the painting over of Twitchell’s 70-foot-tall mural of artist Ed Ruscha in Los Angeles. Similarly, earlier this year a federal judge awarded a collective of graffiti artists in Brooklyn, New York, $6.7MM for the destruction of the so-called, “5Pointz Walls” after a jury found the real estate defendant liable under VARA for destroying them to make way for luxury condominiums.

As the love of street art and the seemingly unending gentrification of Denver’s neighborhoods continue to evolve together, it’s only a matter of time before similar issues surface here. Artists and property owners alike would therefore be wise to take these issues into consideration when working on a new art commission.

Zach Warkentin is a copyright attorney in Denver, Colorado. He is also a musician and a former creative director. For more information about Zach, please visit WLLC’s About page.

DISCLAIMER: The above discussion is for informational purposes only and is not intended to be legal advice. You should contact an attorney to discuss any particular legal issue or problem. Neither use of, nor access to this website creates an attorney-client relationship between Warkentin LLC and the reader.

Zachary Warkentin