Protecting Unsanctioned Street Art Under the Visual Artists Rights Act of 1990

Authors

Thomas Goddard

Document Type

Note

Abstract

(Excerpt)

Before 2013, artists and art enthusiasts would flock to a dilapidated building in Long Island City to view and engage with a vast collection of graffiti and street art murals. The site was filled with over two decades' worth of murals created by legendary street artists such as "Blade" and "Lady Pink." The building, with artists having free reign to paint on the walls of the 200,000 square foot space, became a mecca for graffiti and public art. The community would come in droves to experience the vibrant art and watch performances by rappers and dancers from around the world. A once barren building had become a space revered around the world for its contributions to public art. So when word began to spread that the owner of the building planned to raze the 5Pointz building, the artists sued to protect their art.

In 2013, before the courts could hear the artists' case, the building's owner whitewashed the art without warning in the middle of the night. Overnight, the site was returned to its previous state as a barren abandoned building and decades' worth of art was destroyed. Today, instead of a bustling and vibrant art scene, the site is home to a gray high-rise luxury apartment building. The events at 5Pointz were met with public outrage as New York City saw a unique and highly regarded forum for street art replaced by yet another luxury building. The case led to intrigue in the legal community as scholars and courts tried to gauge the level of protections that street artists should be afforded under the law.

This Note argues that, in the context of street art affixed to buildings, the artist should be granted the moral rights protections embodied in the Visual Artists Rights Act of 1990 ("VARA"), regardless of whether the artist received permission from the property owner to install the art. Part I of this Note provides a background on the increasing importance of street art and the doctrine of moral rights that is central to VARA. This section also examines the language of VARA and the legislative history that prompted Congress to enact it. Part II of this Note explains the insufficiencies of VARA as it is applies to street art in its current formulation. This section also outlines the problems that federal courts have encountered when analyzing street art under VARA. Finally, Part III proposes a solution to clear up the ambiguity in VARA and provide more clarity and predictability for artists, property owners, and courts. This section argues that unsanctioned street art is a form of art that should be protected under VARA and that this approach aligns with the text and legislative history of VARA. This section also explores the public policy concerns that support this conclusion and addresses the disadvantages to this approach. This Note concludes by proposing the addition of a new provision to VARA that specifically addresses the issue of a building owner's consent for art incorporated into buildings and would clear up the insufficiencies in the current law.