Second Circuit Affirms $6.7M VARA Judgment for Aerosol Artists

Advertising Law

In a major victory for street artists, the Second Circuit on Feb. 20, 2020, affirmed a lower court’s decision that awarded $6.75 million in statutory damages to aerosol artists whose graffiti art on a warehouse was destroyed so the warehouse owner could build another structure. Castillo v. G&M Realty L.P., No. 18-498-CV, 2020 WL 826392 (2d Cir. Feb. 20, 2020), as amended (Feb. 21, 2020).

In February 2018, the U.S. District Court, Eastern District of New York, ruled that the developer’s destruction of a famous New York City graffiti space known as 5Pointz was an intentional violation of the Visual Artists Rights Act, 17 U.S.C.A § 106A(a) (VARA), an obscure statute that provides limited protection for artists against destruction or mutilation of their art. The developer appealed, but the Second Circuit agreed with the plaintiffs and affirmed the lower court’s judgment, including the statutory award.

For 11 years, from 2002 to its destruction in 2013, 5Pointz, a 200,000-square-foot warehouse in Long Island City, featured a total of 10,650 works created by both well-known and up-and-coming aerosol artists. The collection was curated by the distinguished aerosol artist Jonathan Cohen. Then, in 2013, the owner of 5Pointz decided to demolish the warehouse and build luxury apartments on the site. In response, the artists sought to have the site designated by the New York City Landmark Preservation Commission as a site of cultural significance, and they attempted to raise money to purchase the site. When these efforts failed, the artists sued the building owner under VARA to prevent destruction of the site, and they secured a temporary restraining order (TRO). When the TRO expired and the artists failed to obtain a preliminary injunction, the building owner immediately whitewashed the works and demolished the building ten months later.

The artists sought and were denied a preliminary injunction in their VARA suit. In 2018, in a case of apparent first impression, the district court found that 45 of the works had achieved “recognized stature” under VARA. The court awarded the artists a total of $6.75 million, the maximum amount of statutory damages allowed—$150,000 for each of the 45 works.

VARA, which was added to the U.S. Copyright Act in 1990, provides narrow moral rights protection to the creators of “works of visual art,” such as paintings, drawings, prints and sculptures. The right to integrity, one of the two specific moral rights granted under 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.

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.”

The court ruled that VARA does not preclude temporary artwork from attaining recognized stature, citing street artists Christo and Banksy, who were featured at 5Pointz as culturally important artists and whose temporary works would be protected by VARA. Christo had installed The Gates in 2005, a two-week-long installation of over 7,000 orange-draped gates in Central Park, and Banksy’s Girl With a Balloon sold for $1.4 million in 2018 and was then destroyed.

The court further clarified that the lower court did not err in focusing on the stature and location of the warehouse, as opposed to the individual works at 5Pointz, noting that the site of a work is relevant in determining whether a work has achieved recognized stature. A certain location, such as the Louvre or the Prado, may “render the recognition and stature of a work beyond question.” Appearance at a curated site indicates that a work has been deemed “meritorious by a curator and therefore is evidence of stature. When the curator is distinguished, his selection of the work is especially probative.”

To read the court’s decision, click here.

Why it matters: Unlike several other countries, like those in the European Union, the United States does not generally recognize moral rights. VARA is an exception as it provides limited protection to works of visual art but expressly excludes posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures and other audiovisual works, or copies of works of visual art.

Additionally, VARA is subject to 17 U.S.C.A § 113(d) of the Copyright Act, which concerns certain visual works incorporated into a building. Under this statute, consent of the artist is required to remove a work if that work cannot be removed from a building without the “destruction, distortion, mutilation, or other modification of the work,” unless the artist has waived the artist’s statutory rights. However, if a work can be removed from a building without causing damage, a building owner must make a “diligent, good faith effort” to provide notice to the artist of the intended removal. If the artist does not remove the work within 90 days of receiving notice, the building owner may remove the work and the artist will be precluded from asserting a claim under VARA.

It is important to note that the defendant in Castillo could have saved millions of dollars in damages, not to mention the expense of litigation, by simply providing the artists with notice of the intended removal of the artworks and giving them 90 days to remove the works. In awarding maximum statutory damages to the plaintiffs, the district court judge called the site’s destruction “an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art.” The judge further commented that the owner “has been singularly unrepentant. He was given multiple opportunities to admit the whitewashing was a mistake, show remorse or suggest he would do things differently if he had another chance. He denied them all.”

Alternatively, the owner of 5Pointz could have secured a VARA waiver from each of the artists in advance under Section 113(d) as a condition of their painting on the warehouse walls. The VARA waiver is a written instrument, signed by the owner of the building and the artist of the work, which specifies “that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.”

Note that the 90-day notice option and the VARA waiver under Section 113(d) are available only with respect to a work that “has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.”



pursuant to New York DR 2-101(f)

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