In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a part of history . . . . We can teach kids in the future that this is what happened in 2020, and there are different artists that were coming out and putting beautiful stuff up that can impact the future.”
With the creation of artwork comes the question of how such artwork can be preserved. The Visual Artists Rights Act of 1990 (“VARA”) grants visual artists the right “to prevent any destruction of a work of recognized stature.” In February 2020, the Second Circuit held in Castillo v. G&M Realty L.P. that a work of visual art “is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.” In an age when artwork can reach broad audiences via online platforms such as Instagram and Facebook, the question has arisen of what protections, if any, online recognition might provide to works of art. At least one court⎯the district court in Cohen v. G&M Realty L.P., the case that ultimately gave rise to the Second Circuit’s decision in Castillo⎯has explicitly accounted for online and social media response in determining whether certain works of art had achieved recognized stature. Moreover, in the legal community, the thought is emerging that the expansive reach of online platforms can help cement the stature of works of art, including works of mural and protest art inspired by the Black Lives Matter movement.
This Note advocates for a judicial approach to recognized stature analysis under VARA that gives due consideration to online response to artworks while acknowledging and accounting for its limitations. This Note consists of three parts. Part I provides an overview of the “recognized stature” provision of VARA and examines its recent judicial treatment by the Second Circuit and district court in Castillo. Part II explores the potential for courts to factor online response into judicial assessments of whether certain artworks have achieved recognized stature under VARA. More specifically, Part II(A) discusses the role that social media platforms have played in increasing public accessibility to and engagement with art, particularly street art, and Part II(B) discusses the foundations for incorporating online response into recognized-stature analysis and considers some of the merits and complications of such an approach. Finally, Part III recommends that courts expand their analysis to include online response to the extent that courts can extrapolate qualitative information that will help them determine whether a work of art has achieved recognized stature. This approach encourages careful analysis that appropriately accounts for the value that online response can contribute to an artwork’s stature.