5Pointz Owner Seeks SCOTUS Review of VARA

Advertising Law

G&M Realty (G&M), the owner of the famous New York City graffiti space known as 5Pointz, asked the Supreme Court to strike down as unconstitutional the Visual Artists Rights Act (VARA), a federal copyright law that provides limited protection for artists against destruction or mutilation of their art.

In February, the Second Circuit in Castillo v. G&M Realty L.P. affirmed a lower court’s award of $6.75 million in statutory damages to aerosol artists whose graffiti art at 5Pointz was destroyed by G&M in 2013. As we previously covered, G&M whitewashed the space without providing notice to the artists and later tore it down to build luxury apartments. In affirming the lower court’s holding, the Second Circuit established a clear standard for what constitutes a work of “recognized stature” under VARA, stating that “a work 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 its petition for certiorari, G&M asserts that VARA’s protection of artworks of “recognized stature” is so vague that it “egregiously” violates the due process guarantee under the Fifth Amendment. G&M further argues that the standard established by Castillo for works of “recognized stature,” a term that is not defined in VARA, is subjective and creates uncertainty for property owners as to which works are protected from unauthorized destruction under VARA.

Why it matters:

VARA enables an artist to (i) prevent any intentional distortion, mutilation or modification of a work that may harm the artist’s honor or reputation and (ii) prevent destruction of works of recognized stature. This copyright statute was, until recently, little-known and little-used with limited applicability. Property owners can simply provide artists with notice of the intended removal of the artwork and with 90 days to remove the works. Alternatively, property owners can obtain VARA waivers from each of the artists—during initial procurement of the work, for example, to avoid even having to provide notice before removing the work.

The drama surrounding the destruction of 5Pointz by the property owner and the ensuing legal battles have brought VARA into the forefront and under fresh scrutiny. Castillo was a major victory for street artists and provided much-needed clarity on the standard to apply when determining whether certain works of art have achieved “recognized stature” so as to merit the protections under VARA. G&M’s petition is the first direct challenge to VARA’s constitutionality, and the Supreme Court’s response to the petition should be closely watched by property owners—including retail stores that may commission street art to adorn their retail space, as well as the art world generally.

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