The Making of the Moral Rights Case: The Factual and Legal Background of the 5Pointz Trial

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[Observing 5Pointz Trial], courtroom art by Elizabeth Williams (Nov. 3, 2017).

By Laura B. Richardson*

 

5Pointz, the world renowned “graffiti mecca” as it was once known, has become the subject of a legal battle which has culminated in a jury trial in the Eastern District of New York. Cohen v. G&M Realty L.P., 2017 U.S. Dist. LEXIS 50943 is a case brought by twenty-one graffiti artist plaintiffs against the defendant property owners of the 5Pointz buildings, for the destruction of 49 aerosol artworks (numbers of plaintiff-artists and works have been changing between 2013 and 2017). The artists are suing for infringement of their rights under the Visual Artists Rights Act 1990 (“VARA”), 17 U.S.C. § 106A, which protects rights of living artists whose visual art works are of recognized stature.

Background

In 1971, Jerry Wolkoff, a real estate developer from Brooklyn who started his own residential development company in his late teens, purchased an industrial complex in a “gritty” industrial neighborhood at 45–46 Davis Street, Long Island City, Queens, New York. The property extended across a 200,000 square-foot factory complex. Twenty years later, Wolkoff authorized the site to become the “Phun Phactory,” where graffiti artists were permitted to paint on the walls. The Phun Phactory was an effort by Pat DiLillo in the early 1990s to discourage illegal graffiti vandalism and create a legal space for local street artists to execute and display their work. 

In 2002, Jonathan Cohen (known by his tag name “Meres One”), a graffiti artist born in 1973 in the South Bronx and raised in Queens, New York, met with Wolkoff and offered to curate urban a.k.a. aerosol a.k.a graffiti works at the Queens complex. He proceeded to rename and develop the site, now known as 5Pointz, into an artistic hub. According to Cohen, Wolkoff welcomed graffiti art on his property with three rules: no pornography, no religion, and no politics to be painted at the site. Cohen was also aware that Wolkoff would one day develop the property, and that the buildings, and the paintings on their walls, would become history.

With Cohen’s curation, both the quality of artwork at 5Pointz and 5Pointz’s reputation grew significantly until it reached the level of an internationally celebrated open-air aerosol art exhibition. Between 2002 and 2013, numerous tourists and aerosol artists from all over the world visited 5Pointz to witness and paint at the iconic venue. With the increased tourism and artistic community presence, the surrounding neighborhood improved considerably.

“Save 5Pointz”

In the wake of a real estate boom in Long Island City beginning in 2010, Wolkoff was ready to capitalize on the rising property value and indicated his intent to redevelop the 5Pointz site into high-rise apartment towers. On August 21, 2013, the City Planning Commission, the responsible body for urban planning related to the growth and development of New York City, issued the permit for the demolition of the 5Pointz buildings and for the rebuilding on the site of two towers containing 800 luxury rentals and 200 affordable units. The City Planning Commission did require, as a condition for issuing the building permit, that the new residential complex include 3,300 square feet of exterior art panels “to be used to maintain artist street wall art in the area.”

In the petition filed on October 10, 2013, seventeen graffiti artists, including Cohen, sought to enjoin the demolition and to preserve 5Pointz for street artists. In addition, artists filed requests for landmark status evaluation by the New York City Landmark Preservation Commission (the “Commission”). The Commission, created in 1965, is responsible for protecting and regulating New York City’s architecturally, historically, and culturally significant buildings and sites. On August 20, 2013, it denied the request to designate 5Pointz as a landmark because the feature of interest—the artwork—had not been in existence for at least thirty years. Cohen also sought funding to acquire the 5Pointz site in order to “create the first aerosol art museum in the world” (Jonathan Cohen Direct Examination October 30, 2017).

Street Artists Go to Court

On October 10, 2013, artists, represented by Jeannine Leigh Widmer Chanes, sought a federal court order to preliminarily enjoin the destruction of the buildings, invoking their Visual Artists Rights Act 1990 (VARA) rights. On October 17, 2013, the Eastern District Court issued a temporary restraining order against the property owner, enjoining Wolkoff from altering the building in any way whilst the Court considered the plaintiffs’ motion. On November 12, 2013 the Court lifted the restraining order and denied the plaintiffs’ request for preliminary injunctive relief. Judge Block indicated that a written opinion would follow, and on November 20, his opinion explained that going to the issues of both irreparable harm and the balancing of the hardships, “the transient nature of the plaintiffs’ works” was the “ineluctable factor which preclude[d] either preliminary or permanent injunctive relief.”

Between November 12 and November 20, Wolkoff apparently denied artists access to 5Pointz and on November 19, he ordered 5Pointz whitewashed overnight, without any notification to the artists. In his deposition on Friday, November 3, 2017 Wolkoff admitted that he hired and paid in cash a crew of painters, who began covering 5Pointz with white (and blue and black) paint at 4 a.m.. Some of the murals were covered in their entirety, while others were partially obscured by whitewash, with ghosts of the mutilated art peeping from under the quick job of reclaiming 5Pointz by its legal owner. The compound structures were not actually demolished until months later in August 2014.

The artists subsequently sued, seeking damages for the destruction of visual works of art at 5Pointz, in violation of their rights under the Visual Artists Rights Act 1990.

In the defense’s opening statement on October 17th of the inaugural jury truly to hear a VARA case, Wolkoff’s attorneys characterized the whitewashing as a humanitarian act, “ripping off the Band-Aid” and covering the works so as to save the artists from the distress of seeing their art sit on the walls waiting for demolition for several months.

Moving up in the World

Graffiti and aerosol art has rapidly evolved from a type of illicit activity in its formative years to a hip and popular contemporary form of visual expression, legitimized both by the aesthetics and skills of the artists as well as the art market forces that have voted with increasing sales and popularity of this form of art. Street artists have been recognized by gallery owners and goers, with an increased number of exhibitions, as well as increased instances of infringements against street artists on behalf of fashion designers and corporations (McDonalds, Cavalli, Vince).

The 5Pointz case is important for its symbolism, where artists who have “street cred” and undeniable talent, are testing the limits of the established order separating the rarified world of “high art” from the fringe, which is likely to be relevant to the great “cross-section of society” referenced in the formulated legal language.

Moral rights of artists did not come naturally to the American jurisprudence. The Visual Artists Rights Act 1990, 17 U.S.C. § 106A (“VARA”) was enacted in response to the United States’ accession to the 1886 Berne Convention, which requires that member states protect copyright authors’ numerous moral rights. (Berne Convention for the Protection of Literary and Artistic Works, 1886, Article 6bis (1)). VARA grants the author of a “work of visual art” only the right to paternity and to prevent intentional distortion, mutilation or other modification of the work that would be prejudicial to their reputation; and, in the case of works of “recognized stature,” the right to prevent their destruction (17 U.S.C. §106A(a)).

One of the main issues, and indeed a deciding factor, in the pending 5Pointz case is whether the graffiti art murals are of “recognized stature”. This is a high bar to reach for a form of art born on the streets of poor urban neighborhoods and practiced predominantly by first and second generation immigrants. There has been relatively little case law on the statutory interpretation and application, but the standard for “recognized stature” that has been formulated and applied by the 2nd and 7th Circuit courts in previous cases has required: 

“(1) that the visual art in question has “stature,” i.e. is viewed as meritorious, and

(2) that this stature is “recognized” by art experts, other members of the artistic community, or by some cross-section of society.”

(Martin v. City of Indianapolis 192 F.3d 608 (7th Cir. 1999)); (Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994) affirmed in part, vacated in part, reversed in part, 71 F.3d 77 (2d Cir. 1995)).

This case, having survived multiple motions for dismissal, has entered its trial stage on October 17th, 2017 before Senior District Judge Frederick Block at the Eastern District of New York Federal Courthouse in Brooklyn. With no precedent to follow, the case has been characterized by the Judge as “an odd ball cup of tea,” and it is uncertain whether the works of aerosol art will meet the standard of recognized stature required for a successful VARA claim. Years ago, in the early days of graffiti, which was regarded as mere vandalism or tagging, there likely would not have been a viable legal argument that graffiti could be a work of visual art of recognized stature. Just as the 5Pointz venue did, the 5Pointz case demonstrates the progress and evolution of graffiti into an established and legitimate form of art that requires vast technical skill and has aesthetic and cultural merit.

Regardless of the outcome, this case is a cautionary tale for artists as well as real property owners who permit graffiti art on their property to contemplate moral rights waivers as a safeguard against similar litigations. Given that the United States does not afford robust moral rights protections, VARA rights can be waived.

Closing arguments and jury instructions are scheduled for November 6, 2017.

* * *

5Pointz Chronology

1971– Jerry Wolkoff purchases property at 45–46 Davis Street Long Island City, Queens, New York.

1993 – The site is established as the “Phun Phactory” and Wolkoff grants artists permission to paint on building.

2002 – Jonathan Cohen becomes curator of 5Pointz.

2002-2013 – 5Pointz becomes internationally recognized “open air aerosol art museum” and “mecca of graffiti art” as top street artists flock to New York to paint at 5Pointz and tourists visit from all over the world to experience the murals at 5Pointz.

2010 – Real estate boom and sharp increase in property value in the Long Island City area.

August 21, 2013  New York City Landmark Preservation Commission denies granting 5Pointz landmark status.

August 21, 2013 – The City Planning Commission issues building permit authorizing the destruction of the 5Pointz buildings and the building of two-high rise towers containing 800 luxury rentals and more than 200 affordable units.

October 10, 2013 – Plaintiffs file complaint and motion for preliminary injunction to prevent the destruction of the premises, invoking their VARA rights.

October 17, 2013 – Court issues a temporary restraining order against the property owner.

November 12, 2013 – Court issues an order denying plaintiffs’ request for preliminary injunctive relief to prevent the destruction of their paintings.

November 19, 2013 – Whitewashing of building occurs overnight.

June 17, 2014 – Plaintiffs file the Cohen Complaint. In it, four claims are pled: (1) VARA, (2) intentional infliction of emotional distress (“IIED”), (3) conversion, and (4) property damage. 

August 2014– Demolition of whitewashed 5Pointz buildings.

June 3, 2015 – Maria Castillo and other artists (“Castillo Plaintiffs”) initiate a separate lawsuit against the defendants (“Castillo Matter”). As in Cohen, the Castillo Plaintiffs adduce the same four claims in their pleadings.

October 17, 2017 – Trial begins in Federal court, J. Block presiding.

* * *

*About the Author: Laura B. Richardson is serving as the Fall 2017 Postgraduate Legal Fellow with the Center for Art Law. She obtained her LLB from King’s College London in 2016 and is currently an LLM candidate at NYU School of Law with a specialization in Competition, Innovation and Information Law. She can be reached at lbr312@nyu.edu

 

More than Just “Street Cred”: Why Intellectual Property Rights Matter to Street Artists

By Christine E. Weller*

Perhaps to the dismay of artists executing works in public spaces or on private property, street art and graffiti art has financial value and can be sold at auction without the artist’s consent. This commercialization does not sit well with some artists who engage in street art (illegally at times) as part of a political act, social commentary, or even just  for exposure.  Increasingly, graffiti and street artists who fight the involuntary commercialization of their work are achieving some success.

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Street art near Center for Art Law’s Headquarters in DUMBO. The DUMBO Improvement District commissioned this work with studio Sagmeister & Walsh, in partnership with Two Trees Management Co and the NYCDOT Urban Art Program, who collaborated with renowned Japanese illustrator Yuko Shimizu, and hand painted by Coby Kennedy.

While the terminology is unclear and used interchangeably, graffiti and street art are distinct.  The two disciplines can inform each other and are interrelated, but they differ in terms of style, method, and theme. Graffiti generally refers to stylized writing such as graffiti tags and visual work placed on buildings without permission.  Street art can take the form of murals or installations incorporated into property, more often with permission (tacit or explicit) of the property owner. Labels aside, street art lawsuits are garnering attention, and have enough merit to have caused several major commercial brands, including American Eagle Outfitters and Sony Music to settle infringement claims.

Since July 2014, there has been a rise in intellectual property (IP) lawsuits filed by street artists. However, a tension in the legal framework exists.  Many still view street art as an illegal act without artistic merit, to which no rights should attach. Notwithstanding the Visual Artists Rights Act (VARA), U.S. Copyright legislation that protects “moral” rights of artists in their work, there is legal precedent that street art may be destroyed by the property owner or painted over. Cohen v. G&M Realty LP, 988 F. Supp. 2d 212, 214, 109 U.S.P.Q.2d 1869 (E.D.N.Y. 2013)(Five Pointz). Nevertheless, the right to reproduce the street art may be protected by copyright or trademark law as evidenced by the successes in recent copyright cases brought by street artists.  The tension between the street artists’ intellectual property rights and the arrests and vandalism charges they may face is illustrated by the arrest of graffiti artist Cost (Adam Cole) and the recent false arrest lawsuit filed by Richard Pfeiffer, who police allegedly thought was Banksy. Richard Pfeiffer vs. The City of New York et al, No. 152797/2015 (N.Y. Sup Ct. Mar. 21, 2015).

However, with this new wave of successful suits and several forthcoming street art exhibitions, such as Coney Art Walls presented by Jeffrey Deitch in New York and Open Source: Engaging Audiences in Public Spaces presented by the Philadelphia Mural Arts Program, there is an increased need for both artists and brand owners to appreciate that intellectual property rights can attach to artworks installed or executed in public spaces.

A Legal Primer

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“Trust Your Vision” By gilf! Street art near our headquarters in DUMBO. Plaque next to art states: “As the world becomes more and more competitive it’s easy to lose sight of one’s goals and aspirations. This maze-inspired piece references the difficulty of navigating life, especially in a city like New York.”

Under U.S. Copyright law, legal protection attaches when an original work is “fixed in a tangible medium of expression.” 17 U.S. Code § 102. Originality is a fairly low bar. The holder of the copyright has several exclusive rights in the work for the duration of the copyright (the general rule today is the life of the author plus 70 years for most works), including: reproducing the work, preparing derivative works, distributing copies of the work and displaying the work publicly. Id. § 106.  Authors need not own the physical copy of the original, nor register their works in order for rights to attach.  However, registering the works with the U.S. Copyright Office is a prerequisite to bringing a lawsuit and allows for statutory damages. Id. § 411. In cases where actual damages are hard to prove, registration is a cheap and added benefit to the copyright owner.

Under U.S. Trademark law, protection attaches to words or symbols used to distinguish a good or service in commerce. 15 U.S. Code § 1051 et. seq. Trademark law is used to protect consumers against confusion. A trademark has the potential to last indefinitely provided that it is being used in commerce.  While the use in commerce requirement for trademarks may make it more challenging for an artist to obtain a trademark registration than a copyright registration, a trademark registration with the Patent and Trademark Office may be another source of artists’ rights in their work. Trademark protection may be especially relevant where an artist uses a graffiti or street art tag in commerce.

The Cases

Anasagasti v. American Eagle Outfitters, Inc., No. 1:14-cv-05618 (S.D.N.Y. Jul 23, 2014)

The recent wave of street art infringement cases began in 2014 with the copyright case filed by Cuban-American street artist Ahol Sniffs Glue (David Anasagasti).  In July, Anasagasti filed a copyright infringement action against American Eagle Outfitters for their use of his mural Ocean Grown (Fl) in an advertising campaign. The original mural, located in Miami’s Wynwood neighborhood, known for its abundance of street art, was commissioned by Ocean Grown Glass Gallery. Wynwood has a vibrant collection of murals, and according to the Miami Times, photographers often seek licenses from the artists before shooting the work. In his complaint, the artist alleges that no permission was sought, and the photography included models posing as if they were painting the murals. American Eagle and Anasagasti privately settled in December.

Hayuk v. Sony Music Entertainment et al, No. 1:14-cv-06659 (S.D.N.Y. Aug 19, 2014)

Well known and successful artist Maya Hayuk also brought and settled a copyright infringement case against musician Sara Bareilles and Sony Music for the unauthorized use of her mural, Chem Trails NYC, in promotional materials for Bareilles’ new album and tour. Previously, Hayuk has sued Urban Outfitters, Target, Coach, and Elle Warner, for the unauthorized use of her artwork.

Miller v. Toll Brothers, Inc., No. 1:15-cv-00322 (E.D.N.Y. Jan 21, 2015)

Luxury  real estate developers Toll Brothers settled with CAM (Craig Anthony Miller) for copyright infringement of his famous Elephant Mural (NYC). The mural was featured prominently in advertisements for luxury condos in Brooklyn that Toll Brothers were developing in the neighborhood where the artwork was originally located. CAM had painted the mural with permission of the property owner in 2009, but it was later painted over in 2013.

Franco Fasoli et al v. Voltage Pictures LLC et al., No. 2:15-cv-00889 (C.D. Cal. Feb 06, 2015)

In February, director Terry Gilliam also found himself at the center of a lawsuit over his film, The Zero Theorem (2013), when he  allegedly infringed a mural by Argentinian street artists Jaz (Franco Fasoli) and Ever (Nicolas Santiago Romero Escalada), along with Canadian artist, Other (Derek Shamus Mehaffey).  In Fasoli, the defendant filed a motion to dismiss.  The Court vacated the hearing date of May 4, 2015 and the parties await a finding on the papers.

Jason Williams et al v. Roberto Cavalli, S.p.A. et al, No. 2:14-cv-06659 (C.D. Cal. Aug 25, 2014)

Finally, in a case involving both copyright and trademark infringement claims, Revok, Reyes, and Steel (Jason Williams, Victor Chapa, and Jeffrey Rubin respectively) filed suit against fashion designer Cavalli for the use of the Plaintiffs’ mural in Cavalli clothing designs. In Williams, the Plaintiffs alleged that pieces of their work were reproduced on Cavalli clothing with their signatures obliterated, and the Cavalli trademark superimposed instead. Plaintiffs argued that this creates a false impression to the consumer as to the origin of the product. In February the court denied a motion to dismiss filed by another named defendant in the suit, Staff USA. Williams v. Cavalli, 113 U.S.P.Q.2d 1944 (C.D. Cal. 2015). This suit is currently pending in the District Court of the Central District of California (Western Division).  It will be interesting to see how the court will treat the trademark argument if the case does not settle.  Many of the artists that have brought suit engage in their own commercial transactions and have carefully policed their brands to control how their work is used and sold to ensure that they are being compensated. The disposition of Williams could establish a new legal tool for street artists.

Going Forward

Defendants in many of these cases, recognized brand owners such as Sony, Cavalli and American Eagle usually find themselves on the other side of IP infringement lawsuits. However, these graffiti and street art cases illustrate that savvy business people and corporations exploring new marketing strategies do not always appreciate that art appearing in “public” spaces is not necessarily in the “public domain.” Copying and distributing street art without permission may constitute infringement and may expose the copier or distributor to significant legal risks.

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“The Owls, Revealing Flight” by Craig Anthony Miller (CAM). Street art near our headquarters in DUMBO.

With the preceding examples in mind, street artists should consider their IP rights when installing work in public spaces, and the public and brand owners should be aware that artwork appearing in public spaces may be protected. Before using street art or graffiti art in marketing or product campaigns, brand owners should consider investigating who holds the rights to those works and seek appropriate permissions.  Going forward, street artists who install work in a public space may consider registering that work with the Copyright Office.  Where an artist uses a specific tag or name for commercial purposes, the artist could consider filing for a trademark.  While the notion of “use in commerce” in the context of street art is still untested, bringing a trademark claim in addition to a copyright infringement claim as in Williams might be an additional remedy for a recognized artist.

Select Sources:

*About the Author: Christine E. Weller is an Associate at Griesing Law, LLC where she focuses her practice on new media, intellectual property, nonprofit, and employment law  matters. She can be reached at (215) 732-3923 or cweller@griesinglaw.com.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers are not meant to act or rely on the information in this article without attorney consultation.

Artists’ Use of Drones Endangered

From KATSU's Remember the Future, 2015. Source: http://theholenyc.com/2015/01/02/katsu/

From KATSU’s Remember the Future, 2015.
Source: http://theholenyc.com/2015/01/02/katsu/

By Dennis C. Abrams*

Since the Federal Aviation Administration (FAA) first authorized the use of unmanned aircraft in 1990, noncommercial operation thereof has been relatively unregulated. As a result, artists in the United States have long had free rein to utilize drones in their artwork. However, this freedom may come to an end before the end of 2015. The Chairman of the House Transportation and Infrastructure Committee, Representative Bill Shuster, R-Pa., said in December of 2014 that Congress would prioritize overhauling aviation policy and reauthorizing FAA programs in 2015. In January The Art Newspaper reported that the FAA is planning to submit new restrictive drone regulations to Congress by September.

Drones have become relatively affordable and available to lay consumers over the past few years; the DJI Phantom, the world’s bestselling drone model, is now available for $479 on Amazon.com. As such, the proportion of drone operators who are artists has been increasing relative to the original user base of aviation enthusiasts. Notorious for pushing boundaries of the permissible and possible, artists have used drones as a subject of art (such as in James Bridle’s political commentary “Drone Shadow”), an instrument to create art (as in works by Addie Wagenknecht and KATSU) and a medium in and of themselves (for example, Alex Rivera’s “LowDrone” and Bart Jansen’s taxidermy). Drones have been useful to artists working in different media and fields including photography, painting, audio-visual art and live performances (as in shows by Cirque du Soleil and Japanese dance troupe Eleven Play).

While drones do present exciting means of expression previously unavailable to most artists with modest budgets and little technical training or interest, these drone operators do recognize the unique challenges and risks posed by using the aircraft in their artwork. For example, in 2014, Brooklyn-based graffiti writer KATSU, who has long been on the cutting edge of graffiti innovation, having previously invented the highly influential fire extinguisher spray can, developed a graffiti drone – a quadcopter with an attached aerosol can. Although he has yet to perfect his graffiti drone, he has expressed an intent to use the aircraft to bring his unique brand of art to otherwise inaccessible areas in public view hundreds of feet above the street. However, KATSU’s work may be for naught if the FAA’s forthcoming regulations ground his drone before it can revolutionize the graffiti world. In an interview with Bard College’s Center for the Study of the Drone at a 2014 showing of his drone-created paintings, KATSU acknowledged the novel dangers of using the technology in graffiti, explaining that his traditional graffiti only involves risking his own safety whereas a major concern of using drones is “losing control and having it fly down and hit a woman in the head, or…kill someone.” In addition to injury prevention, the FAA has interests in national security, air traffic control and privacy which could be advanced by regulating noncommercial drone use.

Indeed, the line between commercial, regulated use and recreational, unregulated use of drones can be difficult to identify in the art world. If an operator pilots a drone for use in taking photographs for her own amusement and then later sells those photographs for a modest sum, is she a recreational operator a commercial operator?

Some, such as art critic and journalist Benjamin Sutton, have speculated that the new legislation would eliminate such gray areas by applying the same rules to commercial and noncommercial operation. The legislation may also codify the FAA’s voluntary safety standards for drone operation which, among other suggested “best practices,” encourage operators to not fly near people or crowds, to keep their drones below 400 feet, to give way to full-scale aircraft and to not hesitate to ask for assistance from air traffic control towers in flying safely. The regulations might additionally confine operation to daylight hours.

Commercial drone operation is not absolutely prohibited, however. Under Section 333 of the FAA Modernization and Reform Act of 2012, unmanned aircraft can be used for commercial purposes only if they are granted a certificate of airworthiness by the FAA. In order to grant permission for commercial operation under Section 333, the FAA requires that the operation does not pose a threat to other airspace users or to national security, that there is an “observer” separate from the pilot, that the aircraft remain within sight at all times and that the pilot has at least an FAA Private Pilot certificate and a current medical certificate. To date, the FAA has received 342 requests for Section 333 exceptions and has granted only twenty-four. There is also an exception under Section 334 of the Act allowing federally funded entities, referred to in the statute as “public entities,” to operate drones, which could theoretically allow for continued drone usage in public arts projects.

Until further details come to light, the effects on the art world of the forthcoming legislative revisions are still very speculative. If it were to approach noncommercial drone use the same way that commercial use is handled under current regulations, it would be very difficult for private artists to employ drones in their artwork without running afoul of FAA regulations. However, if the legislation were to only codify the voluntary safety standards, it would not likely be very restrictive of artists’ ability to utilize drones to a reasonable extent.

Selected Source:

  • FAA’s general homepage for drone info: Unmanned Aircraft Systems, Fed. Aviation Admin., http://www.faa.gov/uas/ (last modified Feb. 04, 2015).

About the Author: Dennis C. Abrams, Legal Intern with Center for Art Law, is a 3rd year student at Benjamin N. Cardozo School of Law, concentrating in intellectual property, media, art, entertainment, and sports law. He can be reached at denniscabrams@gmail.com.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.

Who Owns a Banksy? Legal and Artistic Commentary on the Question

Graffiti art has a hard enough life as it is … before you add hedge-fund managers wanting to chop it out and hang it over the fireplace. For the sake of keeping all street art where it belongs I’d encourage people not to buy anything by anybody unless it was created for sale in the first place. – Banksy

The household name synonymous with graffiti as an accepted art form is ‘Banksy,’ that of a UK-born artist who is as anonymous as his name ubiquitous and who’s works are increasingly valued and appreciated. (See, Part I: Who Owns Street Art? Center for Art Law). One of his latest “Better Out Than In” depicts a graffiti artist vomiting flowers. Originally thought to be in LA but it is probably somewhere in NYC because now Banksy seems to be taking on the Big Apple; his website is directing viewers to Lower Manhattan, Midtown and so on. (See, http://www.banksy.co.uk).

Now back to the retching artist. What Banksy is trying to say with this piece, assuming the work is indeed his, is open to interpretation. It may have nothing to do with the fact that his works are heading to art auctions, removed from their intended locations. Or the artist may be having a visceral reaction to the decisions of the property owners to remove his works and sell them for personal gain at the cost of depriving the community he chose to decorate and enriched with his commentary and humor.

“You complete me…” by Banksy

The discourse around graffiti art is necessarily two fold. The work is anonymous but not private. It is gritty yet vulnerable. It attracts and repels at once. With graffiti more than with any other form of art, the viewer is flooded with questions. Is graffiti ‘art’ or ‘vandalism’? Who made it? Who owns it? What kind of message would aliens receiver if they came down to Earth and saw a silhouette of a dog peeing on a silhouette of a fire hydrant with a tag “You complete me…”?

Historically, graffiti was derided not as a form of artistic expression but as an offense, a trespass to property resulting in actual damages. Visual Artists Rights Act, 17 U.S.C. § 106A, would hardly protect tags or colorful self-expression on store shutters or bridge underpasses. The idea that graffiti may be elevated to a recognized work of art is recent. So recent in fact, that graffiti artists are more likely to be accused of intentional damage to private property, face arrest, monetary fines and jail time, not to mention missing their own art openings if arrested for vandalism (felony and misdemeanor offenses). See Complex Art+Design.

In New York, graffiti artists can face felony charges for criminal mischief under the Penal Law § 145.00. Making graffiti is a class A misdemeanor. The Law defines term ‘graffiti’ as “etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property” and “No person shall make graffiti of any type on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.” Penal Law § 145.60. Even possession of graffiti instruments is a misdemeanor because it may evince “an intent to use it to damage property that the defendant had no permission or authority to mark.” Graffiti instruments include “any tool, instrument, article, substance, solution or other compound designed or commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property….” Penal Law § 145.65. See for example, People v. Karina A., 102 A.D.3d 446, 956 N.Y.S.2d 883 (N.Y. App. Div. 1st Dep’t 2013).

Flower Girl

“Flower Girl” (originally in CA, USA)

That is not to say that some of the graffiti that bedecks underpasses and building walls or sides of train cars are not an interesting social commentary, an anecdote that the artist shares with anonymous masses. Yet, law enforcement and most real property owners are rarely amused. Unless may be the graffiti is done by Banksy. In the case of Banksy, some property owners have tried to capitalize on his popularity by covering his graffiti with plexiglass to preserve the works and attract tourists or even removing portions of the walls for sale.

For example, in August 2013, LA Times and others have reported that a 2008 Banksy mural, entitled “Flower Girl,” was removed with a part of the wall of a gas station in anticipation of an auction in December. The piece, weighing over 5,000 pounds, is expected to net about $300,000. Another piece “Slave Labor” was removed from a wall of a retail store and sold privately in excess of $1 million, following an unsuccessful campaign to recover the work for the public viewing.

"Slave Labor" (originally in UK)

“Slave Labor” (originally in UK)

Whether or not Banksy is able to remain anonymous in the City that does not sleep remains to be seen, as Banksy paints New York with automotive paint white and black. At least one of his works has been whitewashed already. Who is the second culprit is unclear. May be Banksy himself covered up the work to stop the fortune hunters from profiting off his work and show that nobody owes him; may be some hard-core New York street artist is fighting off another British invasion, or may be a diehard property owner is keeping his property graffiti free. Whenever Banksy strikes again, once a wall has graffiti on it the owner of the wall is free to do with it as she pleases — paint it over, let it be or cut it up and sell it stone by stone. In fact, it would not be inconceivable to have an action for damages brought by a property owner who has a Bansky graffiti defaced by another, street artist or vandal. After all, unlawful acts such as trespass and vandalism do not sanction subsequent equivalent acts and a New York wall with a Banksy may be worth more than a piece of wall from London or LA .

Sources: LA Times; ArtDaily; Street Art; Banksy.co.uk; Center for Art Law; Julien’s Auctions; The Independent; Images: AFP PHOTO / Robyn BECK (http://www.artdaily.com/?date=08/17/2013&bfd=0[/url])

After a Protracted Battle, Los Angeles Takes Final Steps to Lifting Ban on Murals

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Los Angeles’ decade long ban on murals is coming to a close. This past Wednesday, August 28, 2013, the Los Angeles City Council voted—in a 13-2 decision—to pass a new ordinance that would remove the city’s prohibition on large outdoor artworks.

The ordinance creates several important innovations. It establishes a system whereby artists will pay a $60 registration fee to paint in business and industrial zones on nonresidential buildings. The works cannot contain a commercial message and must remain up for at least two years. Older, preexisting murals, referred to as “Vintage Art Murals,” will be grandfathered under the protection of this policy. Significantly, the ordinance also defines murals as “non-commercial works of art,” creating a category of works distinct from signs and advertisements where one did not exist before.

Wednesday’s meeting marks the closing of a two-year effort that began in October of 2011, when a joint committee of the Planning and Land Use Management and Arts, Parks & Neighborhoods committees of the City Council met to discuss the possibilities of ending the mural ban. According to James Brasuell of LA.curbed.com, three approaches had originally been considered, including i) establishing a special mural district in L.A., ii) creating a permit system controlled by the city, and iii) instituting an “art easement system,” whereby private building owners would give the city an easement (limited use of private property) on its walls.

The lift of the mural moratorium has excited many in local government and art world alike. Councilman Jose Huizar, who chairs that Planning and Land Use Management Committee, stated that he believes the final ordinance will help restore L.A.’s reputation as “the mural capital of the world.” Isabel Rojas-Williams, Executive Director of the Mural Conservancy of Los Angeles, stated that, “the mural community stands united . . . [to] put an end to the dark ages of muralism in Los Angeles.” She also said that “we owe it to our next generation to reclaim our legacy as a mural capital of the world.” Many celebrated artists also attended the city meeting and advocated for the interests of muralists, including Kent Twitchell, Willie Herrón III, Fine Art Squad’s Victor Henderson, and David Botello and Wayne Healy of East Los Streetscapers. In fact, new murals have been popping up all over Los Angeles in anticipation of the end of the ban, including a new work by artist Allison “Hueman” Torneros, who painted a colorful mural on a wall at East Third and Main. Daniel Lahoda, founder and curator of L.A. Freewalls, explained that this was a symbolic act of support for the new ordinance, as the wall had been  “whitewashed either by the city, by local BIDs, or by mysterious crews.”

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New Work By Allison “Hueman” Torneros

The ordinance does not represent a full and immediate victory for mural supporters. Last month, two versions of the ordinance had been presented—one that would allow murals on single-family homes (Option A) and one that would prohibit them (Option B). Option B was approved on Wednesday, by which only residential areas that “opt in” to the mural program by petitioning the city are permitted to have the artworks on walls and homes. Additionally, Wednesday’s meeting was only the first public reading of the ordinance, which will be followed by a second reading this week. At the second reading, the ordinance will again be put to a vote and will require ten to move forward. California arts journalist Ed Fuentes says that the committee will review additional amendments, and review and write additional reports. Thankfully? As? the process is in motion and hopefully the new ordinance will create the legal framework to help L.A. revitalize its historic mural scene.

The battle for L.A.’s walls has been raging for years and represents a conflict between parties with widely divergent interests. Starting with the work of the Los Angeles Fine Arts Squad in the late 1960s-1970s, L.A. became a breeding ground for many important muralists and artists experimenting on the walls all over the city. In recent years, disputes have arisen as the city attempted to protect neighborhoods from unwanted intrusions of large, sometimes controversial artworks and also controlled a proliferation of (poster? Visual?) advertising. The L.A. Times stated: It was the latter objective that led to the ban a decade ago. Advertisers sued the city on 1st Amendment grounds because muralists could create big, eye-catching displays that were banned for commercial enterprises. Of the city’s motivations for imposing the mural ban, famed muralist Kent Twitchell said in an interview with Southern California Public Radio: “I think the reason… that restrictions happened was not to eliminate murals—the city council has always been very supportive of public art. It was to try to cut down on all these huge signs that began going up on the sides of buildings.” However, whatever the city’s motivations, the result of the decade-long ban has been the stifling of the vibrant public art tradition that made L.A. the hub for muralists around the world. And inconsistent application of the ban has led to the realization that a change had to be made.

Although muralists may legally return to L.A. walls, the passing of Option B (which bans artists from painting on single-family homes) appears to be an attempt to represent interests of local residents as well as artists. “It’s difficult to strike a balance,” said Councilman Mike Bonin, who represents Venice, Westchester and Pacific Palisades. “We’re a city of murals, but we’re first and foremost a city of neighborhoods.” Councilmen Paul Koretz and Bob Blumenfield voted against the final measure, saying that the neighborhoods that did not want murals would not have enough of a voice in saying where they go.

Artists are also concerned with how the rules will affect (or hamper) the creative processes of the muralists working on L.A. walls. Though broadly pleased with the result, Twitchell commented:

Willie Herrón, the great legendary muralist from the east side, tried to tell everybody who would listen to him that the same thing is gonna happen that happened before: an unwitting banning of a certain kind of art. The neighborhoods that don’t want murals, because they have this idea of what a mural is—an homogenization of a beautiful painting covered with tagging. They don’t want that in their neighborhood and so they simplistically say ‘no murals in our neighborhood.

What remains to be seen is the exact form that the new ordinance will take, as well as the effects the new ordinance will have on the newly created public artworks.

Check out the New York Times’ tribute to murals and public art in New York City published last week: http://www.nytimes.com/2013/08/30/arts/design/graffiti-art-of-the-city-from-the-bronx-to-brooklyn.html

Sources: LA Times, Art Info

UPDATE: Banksy’s "Slave Labour" Mural Up for Auction Again

Former home to Banksy’s “Slave Labour” in Wood Green, a suburb
north of London.  The street art remaining is anonymous.

The controversial Banksy taken from the wall of a store in Wood Green in up for auction again by the Sincura Group in London.  The stenciled spray paint mural disappeared in May 2012 and resurfaced at an auction house in Miami, where it was withdrawn from the sale under pressure from the Wood Green community and threats of legal action.

The mural under question: Bansky’s “Slave Labour,” 2012.

The building and store owner have not taken any legal action, and the Metropolitan Police of London told the BBC that no crime was reported.  The Sincura Group refuses to reveal the work’s owner and maintains that the sale is
completely legal.  Meanwhile, the community of Wood Green claims ownership of mural and continues to fight for its return.

The community is relieved that the mural is up for auction in London and hope it will remain in London if the £900,000 ($,1371,420) minimum is achieved.  In addition, they are petitioning to remove the mural from auction.

The Member of Parliament for the area, Lynne Featherstone, told the BBC: “This [the auction] is admirable, perhaps, but also incredibly optimistic.  So now I make this direct plea to the owners of the Banksy piece: You have this one last chance to do the right thing.  You have deprived a community of an asset that was given to use for free and greatly enhanced an area that needed it.  I call on you, and your consciences, to pull the piece from both potential sales and return it to its rightful place.”

The mural will appear on the block June 9th.

For our past coverage visit: “Who Owns Street Art?”

Source: “Banksy’s Slave Labour Mural Auctioned in London,” BBC, June 3, 2013.

Part II: UNESCO Forced to Consider Street Art as Cultural Heritage

On March 27th, four sections of the East Side Gallery were destroyed
to make way for a high end construction project.  Preservationists are
calling on UNESCO to protect the remaining street art the
longest remaining section of the Berlin Wall.

UNESCO Director-General Irina Bokova is a strong believer that cultural heritage can be a unifying factor following war.  The “cultural heritage effect” has yet to prove itself at recent sites of conflict, particularly in Syria and Mali. 

In Berlin, however, street art on the remaining sections of the Berlin Wall has proved to be a unifying force.  Almost 25 years after the fall of the wall, Germany is still coming to terms with its communist past.  This was demonstrated passionately this March when sections of the East Side Gallery were removed to create access to luxury high-rise apartment. 

The East Side Gallery was created in 1989 by artists from East and West Germany.  Over the years, it has become a site of remembrance and reflection.  Some have even argued that the street art murals are a better memorial to Germany’s communist era than Checkpoint Charlie or the Brandenburg Gate.

Dmitri Vrubel, My God, help me to survive this deadly love, 1991.
Street art on the Berlin Wall.
In early March, a developer was granted permission to remove four sections of the wall by the State Monuments Office and the Supreme Heritage Authority.  Soon after, protesters gathered in front of the East Side Gallery to prevent its destruction.   
On March 17, six thousand protesters, joined by “Baywatch” star David Hasselhoff, temporary stopped construction on the site.  However, during the early hours of March 27, four sections were removed under the cover of darkness, guarded by 250 police officers. 
 


Birgit Kinder, Test the Best, 1989. 
Located on the East Side Gallery.

Axel Klausmeier, director of the Berlin Wall Foundation, told the press: “There is a wider consciousness for the wall and its cultural significance. [At the time of reunification] it was impossible to imagine thousands of people standing in front of the wall demonstrating to keep it.”

The destruction of these portions of the East Side Gallery has galvanized a movement to preserve the remaining street art.  Preservationists, lead by Leo Schmidt, are calling on UNESCO to protect the site and grant it World Heritage status. 
This is the first time that UNESCO will be asked to consider street art as cultural property.  UNESCO’s decision on whether to grant World Heritage status could establish a new precedent.  It has the potential to usher in a new era with a wider understanding of cultural heritage.
Sources: “Germany: Parts of the Berlin Wall Removed,” The New York Times, March 27, 2013; “Battle to Keep the Remainder of the Berlin Wall,” The Washington Post, March 26, 2013.

Part I: Who Owns Street Art?

Banksy’s “I Can’t Belive You Morons
Actually Buy this Shit” marks the
beginning of his commercial career.

The reference  to James Cuno’s Who Owns Antiquity in the title of this article is not flippant.  The rhetoric and vocabulary that is passe in the discussion of cultural heritage is now relevant to disputes over street art, formerly known as “graffiti.”  A few years ago, even five years ago, street art held little or no value.  It was, in fact, considered a banal nuisance.

Street Art and Antiquities: The Concept of Monetary Value
Today, street art is a valuable commodity and collected by investors world-wide.  Peter Aspden of the Financial Times wrote in February that the concept of street art has drastically changed.  He wrote:

The art world will never allow an underground movement to remain hidden from the view of the art market.  As soon as an artist achieves recognition, his works acquire value.  That is what has happened to Banksy and some of his cohorts, such as D*face, Paul Insect and Pure Evil.  Their work has been absorbed into the commercial world.  Never mind those irreverent anti-capitalist images, feel the auction estimates, which can run into hundreds of thousands of pounds.

This is quite a cultural shift: from spraypaint tags by gangs on subway cars to the floor of Doyle New York, Sotheby and Bonhams.  This commercialization of street art is known as “The Banksy Effect.”

Banksy, “Space Girl and Bird,” sold for
£288,000 ($576,000) in 2007.

Works by Banksy are the most desirable among collectors.  Even though the artist himself chooses to remain anonymous, his signature black and white stencil pieces break auction records at almost every sale.  One could even say that Banksy’s rivals Damien Hirst and all the YBAs.  On April 27, 2007, “Space Girl & Bird” sold at Bonhams for £288,000 ($576,000), almost twenty times the estimate.  February 13th, Banksy’s “Think Tank” sold at Sotheby’s London for £397,250 ($605,300), well over the £120,000- 180,000 ($182,700- $274,290) estimate.

This change in thinking of street art as a commodity mirrors the development of the antiquities trade in the 1900s. The idea that an archeological object has a monetary value is a relatively new concept.  There was a boom in private collecting following the discovery of Pompeii in 1748 and the 1922 excavation of King Tutankhamun’s tomb by Howard Carver and George Herbert.  Therefore, we can refer to the commercialization of antiquities as “The King Tut Effect,” or if you prefer, “The Pompeii Effect.”

The Mere Idea of Provenance
With such hefty price tags a complete provenance is imperative for the sale of both street art and antiquities.  Collectors and sellers need a clear trail of ownership from artist conception to dealer/auctioneer insuring, that illegalities have not occurred.  It is important to have proof that the work was not stolen, not related to illicit activity, and not exported or imported illegally.  There is a strong precedent that unprovenanced antiquities are scrutinized, removed from sales, and demanded to return to their source countries.  This is almost a daily occurrence in the antiquities market and may soon be common for street art in the future.

In fact, Sotheby’s London is leading the way, refusing to sell any Banksy artwork not accompanied by a certificate of authenticity from Pest Control, Banksy’s managing group. Because of recent events, the need for provenance records of street art may soon be standard.

Mexico, Peru and Guatamala joined forces in an
effort to stop the sale of pre-Columbian artifacts,
such as this  “Censer for Two People,” dating from
450-650 AD. Lot 26, 30,000- 40,000 ($38,000-
$51,800) at Sotheby’s Paris March 22-23.

The original context for both street art and antiquities is very important.  This is a two sided issue.  A well documented context will increase the monetary value of works.  Yet, archeologists argue that the illicit looting of antiquities removes them from their historical and cultural context– destroying their non-monetary value as tools for education and learning.

Similarly, community activists argue that when street art is removed from its context the social meaning is lost.  Peter Aspden of the Financial Times reported: “There is something of the wild west about ownership of street art.  The only certainty is that it is not likely to remain in the street for very long.  It has simply become too valuable.”

Without provenance buyers will not buy and sellers will not sell (that is, at least not openly and publicly).
The high monetary value and collectability of street art and antiquities has increased demand. With high demand and insatiable buyers comes the requirement for supply. The pressure and profits to supply create a black market of underground trading.  This leaves both antiquities and street art vulnerable to looting.

Whether cut from building walls or shoveled from ancient dirt, context and provenance are key. In the next decade we may be seeing international agreements to protect valuable street art– just as countries are joining together to develop “understandings” about the antiquities trade.

Banksy, “Slave Labour,” 2012 is at the center of a
firestorm concerning street art ownership.


Banksy’s “Slave Labour” Goes to Market
In mid-February a news storm erupted when a Banksy mural went up for auction at Fine Art Auctions (FAA) in Miami.  The mural “Slave Labour,” portrays a child sweat-shop worker sewing Union Jack banners for the Diamond Jubilee.  The piece mysteriously disappeared from the wall of a shop in Wood Green, north of London.  No details or suspects are known.  The store and building owner deny any involvement.  Scotland Yard stated: “There have been no reports of any theft.  It appears there has been a decision by someone to remove it for sale– there is not suggestion of any crime being committed.”

The mural appeared in Miami’s Fine Art Auction catalogue with an estimate between $500,000- $700,000 (£328,063- £459,588).  Frederic Thut, owner of Fine Art Auction, told The Guardian: “It’s been said that the artwork was stolen, and that is just not true.  We take a lot of care with our consignors, who they are, what they do, and it there’s any illegality we will not touch it.  Everything is checked out 150%.”

The citizens of Wood Green do not agree. In fact, they were outraged.  Claire Kober, a council member, said in an interview with Bloomberg, “Banksy gives these paintings to communities.  They’re cultural assets that generate a huge sense of civic pride.  Morally, if not legally, we act as guardians rather than owners.”  This statement sounds very much like arguments over antiquities.  The language and rhetoric are hard to ignore.

Protesters at Wood Green call for the return
of Banksy’s “Slave Labour” to their community.

The sale of “Slave Labour” was cancelled at the last minute without any explanation from Fine Art Auction.  The Wood Green community sees this as a victory and look forward to the murals return.  Kober stated: “It’s a true credit to the community that their campaigning appears to have helped to stop the sale of this artwork from going ahead.”

The question is: Does “Slave Labour” belong to the community of Wood Green?  Is it cultural heritage of the same standard as antiquities?  Should street art have the same legal protections as antiquities? I will explore these questions next week in Part II of this series.

Sources: “Street Art Aquires Value,” The Financial Times; “‘Stolen’ Banksy Jubilee Mural Pulled from Florida Auction After Council Pressure,” The Telegraph; “Banksy Mural: I’m Being Scapegoated, says Miami Art Dealer,” The Guardian; “Banksy Painting Fetches £288,000,” BBC News; Sotheby’s London, Contemporary Art Day, February 13, 2013, Lot 218 Auction Results.

Note: Doyle New York’s Street Art Auction is Thursday, April 8th.  This is only their second street art auction.