At Techdirt, Cathy Gellis provides an exceptionally thorough parsing of the decision awarding $6.7 million to graffiti artists who painted on another person’s building, and whose “art” was ultimately destroyed when the building owner decided it was time to put his property to a higher use.
The facts in this case are basically this: the owner of a run-down, formerly industrial building in a run-down neighborhood aspired to do something to redevelop his property, but it would be a few years before the time would be right. So in the meantime he let some graffiti artists use the building for their aerosol paintings.
The building became known as 5Pointz, and the artwork on it soon began to attract attention. The neighborhood also began to change, and with the improvement the prospects for redeveloping the property into residences became more promising. From the outset everyone knew that redevelopment would happen eventually, and that it would put an end to the arrangement since the redevelopment would likely necessitate tearing down the building, and with it the art on the walls.
As the date of demolition grew closer, the artists considered buying the building from the owner in order to prevent it from being torn down and thus preserve the art. However the owner had received a variance that suddenly made the value of the property skyrocket from $40 million to $200 million, which made the buyout impossible. So the artists instead sued to halt the destruction of their art and asked for a preliminary injunction, which would ensure that nothing happened to the art while the case was litigated.
But in late 2013 the court denied the preliminary injunction, and so a few days later the building owner went ahead and painted over the walls. The painting-over didn’t end the litigation, which then became focused on whether this painting-over broke the law. In 2017 the court issued a ruling allowing the case to proceed to trial on this question. Then last week came the results of that trial, with the court finding this painting-over a “willfully” “infringing” act and assessing a $6.7 million damages award against the owner for it.
There are a number of very interesting “moments” in the course of this case that might have served as stopping points for the battle. When the preliminary injunction was denied, the court essentially told the building owner to paint away. Of course, that doesn’t preclude the notion of “paint if you want, but you may have to pay for your choice” either.
The battle was, on its surface, between two warring rights: the right of the building owner to dispose of his property as he saw fit, and the right of the graffiti artists to preserve their work under the Visual Artists Rights Act of 1990.
(A) to prevent any intentional destruction, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
At the time the building owner allowed the graffiti artists to paint on the wall of his structure, it would have been hard to imagine that 5Pointz would become famous and VARA would come into play. And much as preserving art is an important and socially valuable goal, this wasn’t the Mona Lisa, and the plaintiffs weren’t Leonardo da Vinci. Then again, da Vinci wasn’t da Vinci until he was.
Much of the conflict derives from the nature of graffiti. Had the art been created on canvas, there would be no property rights involved, but that’s not how graffiti happens. It was vandalism when it began. Thousands of Keith Haring “originals” were destroyed when the New York MTA tore down or covered over his art drawn on the black paper used to cover over subway advertisements whose time had expired. The South Bronx exploded in graffiti, which was very much a part of its “broken windows” decline into chaos and anarchy.
And subway trains? They were rolling canvases of the last graffiti artist’s efforts. Tags over tags over tags, as their canvas was reused without any respect for the tag that came before.
The court was rather dismissive of the property owner’s decision to move forward:
If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully. Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order.
At this juncture, property rights don’t evoke much empathy. The rights of artists, more ethereal and far less tied to the now-disfavored rights of property owners to dispose of their property as they please, are far more likely to enjoy public sympathy. And in fairness, once art is destroyed, it’s gone. Then again, if that was really the court’s concern, it shouldn’t have denied an injunction and then blamed the property owner for acting upon it.
But as easy as it may be to feel that art won, that the right side prevailed because that’s the side with which you best relate, Cathy points out the consequence of the battle.
It also will not be good for future artists whose economic interests might have benefited from other such opportunities like those 5Pointz offered. Even in this case the court noted all the evidence presented in “Folios”, showing that being able to paint the building had opened up all sorts of doors for the artists to reap further economic rewards for their art. Artists will have fewer opportunities for that sort of career-enhancing exposure if landlords are deterred from giving it to them.
***
And therein lies the rub: the building owner did no more than what other law clearly allowed. But by allowing artists to bring claims for the “intentional distortion, mutilation, or other modification . . . [of works that] would be prejudicial to [the artist’s] honor or reputation” the court has set up a direct conflict between VARA and what traditional copyright law, and traditional property law, have allowed. And it has done this without addressing any of the implications of this new policy collision.
Is graffiti art? Some of it, certainly, but it’s art applied to a canvas owned by someone else. It may well be terrible to destroy art, but the upshot is that property owners now have 6.7 million reasons to deny that canvas to graffiti artists going forward. So while the plaintiffs in this case won the battle, who wins the war?
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Don’t be nice. Got it.
I wonder if the owner ever considered “tipping the hat” economically to The Institute of Higher Burnin?
If the owner had something tells me the owner could have got The Institute of Higher Burnin down to less than a percentage point on what ended up costing the owner 4% of the increased valuation.
So don’t let the esteemed one make you a pessimist. The moral of the story is be “nicer”?
Fucking Lawyers…
well covered by the maxim “No good deed goes unpunished”
Graffiti is art, but it is also transient. I have to wonder about the quality of judges when dipshit rulings like this come along.
One of these days one of them judges is going to rule against the seasons when an ice sculpture melts or the ocean when the waves wash away that pretty sand sculpture. Then the planet is gonna have to cough up some gold or silver or something to compensate the artists.
Graffiti used to be transient. That may no longer be the assumption or expectation, especially after this decision.
The ruling may not be quite as dipshit as the article makes it out to be, or at least no more dipshit than most rulings that finely parse questionable laws.
As the court said, if the defendant had simply waited and destroyed the paintings along with the building, there would likely be no liability. 17 USC 106A(a)(3)(B) would seem to require a specific intent to destroy the paintings, and an intent to destroy the building wouldn’t qualify — the paintings would merely be collateral damage, and if the owner had explored in good faith how to save the paintings, then their destruction wouldn’t even be negligent at the point the building was destroyed.
The court strongly implied that over-painting was done in a fit of pique — for example, the paint job wasn’t even all that good. So, maybe even painting over the paintings wouldn’t be “intentional” if the intent wasn’t to destroy the paintings, but was rather to make the place look nicer to attract a buyer, as a part of generally sprucing things up.
The dude got slammed for gratuitous assholery. Sure, bad cases make bad law, but most cases will be distinguishable. To be safe, though, either paint over the graffiti immediately, or get that signed waiver.
Even assholes are allowed to own buildings. And have property rights in their buildings. And some might posit that it’s not assholery at all for a guy who owns a building to do with it as he pleases, because property rights. Let’s not forget that they’re kind of a big deal.
Absolutely. I’m an asshole and I own a building, so I’m all for that and all the attendant property rights, but those rights are seldom absolute. For example, I can evict trespassers, but if I do it incorrectly, I could wind up in jail.
I don’t think it’s a good law, but I think the judge correctly followed it, and in the instant case, it’s the assholery that informed the defendant’s intent.
Ah, the absolutist dilemma. What if trespassers were painted with graffiti, huh? Then what?
Unfortunately in the general context, but fortunately in this specific context, the painted trespassers I am likely to encounter are extremely unlikely to be of recognized, or even reasonable, stature.
Then you have to build a wall to keep them in the north.
In addition to the “gratuitous assholery”, what about his subsequent change of heart about using union labor? Could that have had an effect?
PS As a building owner, have you considered getting a $160 million dollar variance?
Definitely an addition to the “gratuitous assholery” category.
Is it really gratuitous if the promise to use union labor was beneficial to his bottom line, but not using union labor was also beneficial to his bottom line?
Of course not, but then, that’s not why I used the word “gratuitous.”
Sadly, the value of any variance I could get on my building would be likely to end in at most three zeros, rather than 7.
But on the bright side of things, as a Texan, I don’t need no stinkin’ unions!
So, don’t let people paint on your walls, and, if you paint on other people’s walls, take lots of pictures.
A picture is worth 1000 words. A painted over wall is worth $6.7 million dollars. Enjoy that Brownie camera of yours.
You wouldn’t believe how hard it is now to find film for the Brownie. So most of the time, I use this Fuji FinePix 2650 that I broke down and bought a few years back. It connects with a “special cable” to my computer, and I can print the pictures off on my printer. I’m quite with the times now (though not the NYT)!
(Quoting Cathy)
1. A maxim of jurisprudence is that the specific controls over the general. VARA is far more specific than either general copyright law or general property rights law.
2. If VARA applies, it isn’t the court’s job to address policy implications of “this new policy collision.” (It isn’t really new, VARA has conflicted with the others since the day it became law in 1990.) That’s the job of the legislature, not the courts.
3. I have my own thoughts on whether VARA is a good law. But other than some very legitimate questions about the size of the damage award, Cathy (who is a friend) downplays tha fact that it is the law.
4. VARA is the very limited version of what are known as droit morale, or moral rights. Such rights began in France under the Napoleonic Code. I’d guess that you’ve never written about VARA before, and likely won’t again. So why did you screw up your golden opportunity to have some fun with the little man?
You think I’ve never heard of droit morale before? I’ve eaten at Taillevent, you heathen.
Your “maxim (or should I say, maxime) of jurisprudence” that the specific controls over the general is only true if they are both address the legal rights. VARA and basic property are not, and one can’t assume that Congress, by enacting VARA, intentionally intended it to trump property law.
This was an oddball case, and Cathy has the better argument than you do. That said, you (like so many others here that prefer to veer off in their own peculiar orthogonal direction) are free to write your own blog post about your own take on the law. But you know that, right?
Without diving down the moral rights rabbit hole, I’ll just repeat what an older and wiser chap once told me, in the context of some EU negotiations.
Very tricky, these French.
Just curious. If he had tagged the wall himself after getting it painted could he have saved himself a little money?
He did tag it. He just did it in really big, overlapping white letters.
I’m not getting it.
For a TRO to be granted, there needs to be a showing of irreparable damage, something that a mere money judgment can’t fix.
Art, by definition, is unique and cannot be replaced by mere money.
But by awarding monetary damages, isn’t that a concession that its not art?
Unless its putative damages of course. I probably should read the opinion before I post but its Sunday and two children and two hyper active dogs thwart my plans.
A TRO also requires a likelihood of prevailing on the merits.
Two out of three ain’t bad. And then there’s that whole balancing of equities too.
Miss one no TRO.. Comprende.