Whitewashing Over Real Property Rights: Moral Rights and the 5pointz Case

De temps en temps nous partageons des travaux « IP News » exceptionnels, écrits pour la classe de Propriété intellectuelle (BUS 502). Vous trouverez celui de Megan Lindy ci-dessous.  

Whitewashing Over Real Property Rights: Moral Rights and the 5pointz Case

As cultural conceptions of what ‘counts’ as art changes, so too does the application and scope of legal tools designed to protect artwork.  In particular, the rising cultural importance of street art, otherwise referred to as graffiti or aerosol art, has brought building owners’ and artists’ legal interests into conflict. Recently in Cohen v. G & M Realty L.P., a court ruled that the owner of a warehouse had violated the moral rights of a group of artists when he whitewashed their graffiti on his building.^[1] This case highlights how the recognition of graffiti as art heightens tensions between intellectual property and more traditional forms of property. In protecting street art, moral rights have become a limit to the exercise of real property rights.

The 5pointz building in Long Island City, Queens, was a mecca for street art. A 200,000 square-foot warehouse, it was considered the largest collection of outdoor graffiti art in the United States.^[2] Since 2002, Jonathan Cohen, a graffiti artist himself, managed the site and invited artists to paint there with the permission of the building’s owner, Gerald Wolkoff.^[3] In 2013, Wolkoff filed an application with New York City for permission to knock down the warehouse to construct 2 high-rise buildings in its place.^[4] Upon the permit’s issuance, Cohen and sixteen other artists whose work was displayed at 5pointz applied for a preliminary injunction against the destruction of the building and, with it, their artwork.^[5] The judge held that the plaintiffs did not risk irreparable harm requiring interim relief and dismissed the motion.^[6] A week after this ruling, Wolkoff whitewashed the work at 5pointz.^[7] The whitewashing was done inconsistently, with some works completely obscured under the paint and others only partially covered but nonetheless unsalvageable.^[8] Twenty-one 5pointz artists sued for a violation of their moral rights and they were awarded 6.8 million dollars in damages.^[9]

The relevant statute in this case is the Visual Artists Rights Actof 1990 (VARA), which amended the Copyright Act to protect artists’ moral rights in their work.^[10] Accordingly, in order to qualify for protection under VARA, a work must fall under the Copyright Act. Moral rights recognize how an artist’s personality is bound up in their creative works.^[11] VARA creates, for visual art only, two moral rights: (i) the right of authorship and (ii) the right of integrity, which (a) prohibits any intentional distortion, mutilation or modification that would cause harm to the artist’s reputation, and (b) prohibits the destruction of works of “recognized stature”.^[12]

VARA contemplates the potential for an artist’s moral right in their work to conflict with a building-owner’s property rights and provides robust protections for artists. If an artwork has been integrated into a building in such a way that it cannot be removed without harming the author’s right to integrity, then the owner of the building must get written consent from the author waiving their moral rights in the work to be allowed to do so without incurring liability as per § 113(d)(1) of the Copyright Act.^[13] In the case of works that can be removed without compromising its integrity, the Copyright Actdictates under §113(d)(2) that  the building-owner must give notice to the author and allow them 90 days to remove it, or at least  make a “diligent, good faith” effort to give notice before the building-owner is relinquished from liability under VARA.^[14] This puts the onus on the building-owners to protect artists’ moral rights in their work.

VARA’s protection is being revived at a time when street art is gaining popularity and recognition as a legitimate art form.^[15] Importantly, one of the criteria for an artwork’s protection from destruction under VARA is its “recognized stature.”^[16] This means that the artwork is seen as having merit and is recognized within the art community or by a portion of society.^[17] Similarly, the right to integrity is judged based on the damage done to the author’s reputation. To acknowledge that tampering with graffiti can harm an artist’s reputation is to validate graffiti as an expression of a person’s status as an artist. Judge Block’s recognition of the 5pointz artists’ moral rights indicates that there has been a cultural shift towards the recognition of graffiti as an art form worthy of protection.^[18]

However, the expansion of VARA to include graffiti sits in tension with traditional ownership rights. Normally, Wolkoff would be permitted to demolish his building as an ordinary exercise of private ownership.^[19] In fact, the permit from the City gave him express permission to do so. The common law conception of real property is often framed as a ‘bundle-of-rights’, with the owner having greater rights in an object relative all others.^[20] Arising from these relative rights is usually the ability to ‘set the agenda’ for the privately-owned object, such as deciding to modify or destroy it.^[21] Civil law in Québec goes further, characterizing ownership as absolute and thereby creating an expansive and comprehensive real right.^[22] Yet Judge Block ruled that street art rightfully falls under VARA’s protection:  45 out of the 49 works were found to have the necessary “recognized stature” to be protected from destruction.^[23] Street art is distinct in that it is created on surfaces most often owned by someone other than the artist and is largely ephemeral in nature. While the precedent dictates that street art must be created legally (with the building-owner’s permission) to fall under VARA’s protection,^[24] the general lack of formalities required for its creation allows fewer opportunities to get written waivers of moral rights from the artists. Moreover, it begs the question of whether VARA was conceived to protect fundamentally temporary works. The defendants argued that the works lacked the permanence needed for protection.^[25] Indeed, graffiti’s inherent impermanence partially informed Judge Block’s denial of injunctive relief in 5pointz I, and the plaintiffs knew that the building might be demolished someday.^[26] However, the Copyright Actonly requires that a work be “sufficiently permanent or stable to permit it to be perceived for a period of more than transitory duration”.^[27] Consequently, even short periods of fixity are enough to merit protection.^[28] Graffiti’s protection under VARA thus extends moral rights to types of art that are inherently more likely to conflict with real property ownership rights than other works of art contemplated by the Copyright Act.

Street art’s unique nature sets an interesting precedent for the tension between intellectual property and real or immovable property. There is potential for its incursion on real property rights to extend beyond legally-created works, as some academics have argued that illegal graffiti could and should merit protection.^[29] With the 5pointz judgment under appeal regarding whether the works had recognized stature and whether ephemeral works merit protection,^[30] it will be interesting to see how the courts will reconcile the inherent tension between moral rights in street art and building ownership.

Figure 1: 5pointz before whitewashing.

Siqui Sanchez, Photo: 5Pointz Aerosol Art Center, Long Island City, Queens, New York City, (Katherine McGrath, “5 Pointz Developer Who Whitewashed Artists’ Murals Forced to Pay Them $6.7 Million” (13 February 2018), Architectural Digest, online: <www.architecturaldigest.com>).

Figure 2: 5pointz after whitewashing

Max Touhey, Photo (Tanay Warerkar, “5 Pointz developer broke law by whitewashing buildings, says jury” (8 November 2017), Curbed: New York, online: <ny.curbed.com>).

^[1]See figures 1 & 2 in Appendix for photos of 5pointz before and after the whitewashing.

^[2]Cohen v G & M Realty L.P., 988 F Supp (2d) 212 at 214 (USDC EDNY 2013) [5pointz 1].

^[3]Cohen v G & M Realty L.P., 320 F Supp (3d) 421 at 431 (USDC EDNY 2018) [5pointz II].

^[4]5pointz I, supranote 2 at 220.

^[5]Richard Chused, “Moral Rights: the Anti-Rebellion Graffiti Heritage of 5pointz” (2018) 41 Colum J L & Arts 583 at 594.

^[6]Ibid596; 5pointz I, supranote 2 at 226-227.

^[7]5pointz II, supranote 3 at 427.

^[8]Ibidat 435.

^[9]5pointz II, supranote 3 at 447.

^[10]Copyright Act17 USC § 101- 1332 (1976) [Copyright Act] ; Visual Artists Rights Act 17 USC § 106A (1990) [VARA]. VARA was passed to bring American copyright law into conformity with the Berne Convention for the Protection of Literary and Artistic Worksof1886, an international treaty that protects moral rights under Article 6bis, after the United States joined it on March 1st, 1989. Prior to this, American law did not protect moral rights. See Laura Nakashima, “Visual Artists’ Moral Rights in the United States: An Analysis of the Overlooked Need for States to Take Action” (2000) 41 Santa Clara L Rev 41 at 204.

^[11]Sara Cloon, “Incentivizing Graffiti: Extending Copyright Protection to a Prominent Artistic Movement” (2016) 92 Notre Dame L Rev 54 at 59.

^[12]VARA, supranote 10 § 106A(a)(1) & (2), 106A(a)(3)(A) & (B).

^[13]Copyright Act, supranote 10 § 113(d)(1).

^[14]Ibid §113(d)(2)(A) & (B).

^[15]See e.g. Cloon, supranote 11 at 54; Celia Lerman, “Protecting Artistic Vandalism: Graffiti and Copyright Law”,  (2013) 2 NYU J Intell Prop & Ent L 295 at 297,300; Chused, supranote 5 at 590.

^[16]Chused, supranote 5 at 595; 5pointz I, supranote 2at 215

^[17]5pointz II, supra note 3 at 437 quoting Carter v. Helmsley–Spear, Inc., 861 F Supp 303 (USDC SDNY 1994) at 325. While retroactive damages do not restore a destroyed or mutilated artwork, they do compensate materially for its loss, especially given that art is a commodity that can be bought and sold. This was the reasoning used by Judge Block when dismissing the artists’ preliminary motion for an injunction in 5pointz I,supranote 2 at 226-227.

^[18]5pointz II, supranote 3 at 441.

^[19]5pointz II, supranote 3 at 433.

^[20]See e.g. Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58 U Toronto LJ 275.

^[21]Ibid.

^[22]Article 406 of the Civil Code of Lower Canada, published in 1866, stated: “Ownership is the right of enjoying and of disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or by regulations.” The term “absolute” was removed when the Civil Code of Quebecwas published to replace the Civil Code of Lower Canadain 1991, but property-owners still have the “right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law.” [Emphasis added] Civil Code of Quebec, LQ 1991, art. 947. For further discussion on the how the civilian and common law traditions grapple with intangible property rights, see Yaëll Emerich, “Les biens et l’immatérialité en droit civil et en common law” [Property and Immateriality in Civil Law and Common Law] (2018) 59 C de D 389.

^[23]Ibidat 435, 437-439.

^[24]Cloon, supranote 11 at 60, citing English v. BFC & R. East 11th Street LLCNo. 97 Civ. 7446, 1997 WL 746444 at 1(SDNY Dec 3, 1997).

^[25]5pointz II, supranote 3 at 435.

^[26]Chused, supranote 5 at 608; 5pointz I, supranote 2 at 224.

^[27]Copyright Act, supranote 10 § 101; 5pointz II, supranote 3at 437.

^[28]5pointz II, supra note 3 at 434, 437.

^[29]See e.g. Lerman, supranote 15 at 296. Lerman argues that protection is possible given that copyright is concerned with protecting the intangible expression of a work rather than the “material transgressions related to the physical of an artistic work”.

^[30]Eileen Kinsella, “The 5Pointz Developer Ordered to Pay Street Artists $6.8 Million for Whitewashing Their Work Is Now Pushing Back” (27 September 2018), Artnet News, online: <news.artnet.com>.

This content has been updated on December 3, 2018 at 18:18.