By Brett A. Manchel

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If you’re a painter, filmmaker, photographer, or musician, copyright is essential to making your art your business. Copyright law protects your work and ensures you and your family can make a sustainable living. Valuing art for its worth to the public is nothing new – it was even on the minds of the Founding Fathers as they drafted the Constitution. Of course, just as art has evolved in the 200 years since then, so too have our laws. In 1990, Congress passed the Visual Artists Rights Act (VARA), adding into the Copyright Act protection for rights known as moral rights.

Moral rights include:

  1. The right to claim authorship of a work;
  2. The right to prevent the use of one’s name on a work one did not create or on a work that has been distorted, mutilated, or modified in a manner that would prejudice one’s honor or reputation; and
  3. The right to prevent distortion, mutilation, or modification of a work that would prejudice one’s honor or reputation, and to prevent destruction of a work of recognized stature.

See 17 U.S.C. 106A.

VARA extended these moral rights to creators of certain works of visual art – paintings, drawings, prints, sculptures, and still photographs – and in Queens, New York, a Federal Judge just made very clear that VARA protects graffiti, a controversial, but undoubtedly public, form of art.

In Cohen v. G&M Realty L.P., et al., the visual artists behind the famed 5Pointz warehouse in Long Island City sued to force the building owner, Jerry Wolkoff, to abandon plans to demolish the building, arguing that VARA protected the artwork they had spent years cultivating on the property walls. Importantly, Wolkoff had given the artists permission to paint on his property. This isn’t always true of aerosol artists’ works, but here, the license to spray provided the foundation the artists needed to sustain their legal claims.

Wolkoff’s whitewashing the walls of the building months before demolishing it spurred the artists’ lawsuit, which covered 49 works of art. After a lengthy court battle spanning about 4 years, the judge entered an award in favor of the artists for $6.75 million – based on the maximum statutory damages authorized by the law.

This case was never a sure-shot victory for the artists. The ephemeral nature of graffiti and the difficulty in proving injury to honor and reputation raised substantial questions for the jury. In deciding whether to pursue litigation, there are many factors to consider, including time and expenses. The risk of having to convince and judge and jury is substantial, but so are the rewards. And, despite the landmark victory, the matter is not completely over – Wolkoff has appealed the verdict.

At the end of the day, where the very existence of the artists’ work was in jeopardy, filing suit was the only option. It has been a high-risk case, but for now, whether you appreciate graffiti or think it is nuisance, we have a court precedent speaking out for the protection and preservation of public art.