Do graffiti sprayers have any legal rights if a business uses their "art" in ads or logos?

[ftg]

@Aspidistra

Does that court case imply that in the US Rolf could prosecute for that?

He could sue under existing US law, never mind the other court case.

He did it with permission, it’s considered “iconic” and well known. So pretty far along on the “recognized stature” scale.

But winning is something else. If* the judge allows the fact that it was removed because of the pedophile thing, a jury is very unlikely to side with him. Probably won’t even bother to sue.

Note to people wanting to get rid of notable graffiti: Don’t announce it ahead of time. Hope that some paint stripper “accidentally” gets sprayed on it during the night by “unknown” persons.

• OTOH, if his lawyers can get any mention of this banned from the trial, it could go his way.

[Really_Not_All_That_Bright]

@RitterSport

Just bumping this to say that it turns out that graffiti art does fall under V.A.R.A., according to this recent decision:

https://www.nytimes.com/2018/02/12/nyregion/5pointz-graffiti-judgment.html

That is not exactly apropos for the original question of this thread, but the thread had wandered a bit and this particular situation was brought up.

RS

@electronbee

Wow. That was a very recent ruling and I’m sure they’ll appeal it as it’s for $6M.

And, no business owner will ever allow graffiti on their property ever again and will probably prosecute with enhanced fervor anyone who tags their property.

The article is a bit light on background. The 5Pointz work was done with the owner’s permission, and the owner had made hundreds of thousands of dollars in fees for allowing companies to use the site for filming. Moreover, he did not give the artists notice that he was whitewashing their work, so they had no opportunity to record it or attempt to preserve it somehow.

[RedSwinglineOne]

@Really_Not_All_That_Bright

. The 5Pointz work was done with the owner’s permission, and the owner had made hundreds of thousands of dollars in fees for allowing companies to use the site for filming. .

I would think the owner could try to make the case that each individual “painting” is worthless. He could argue that is was the assemblage of the paintings that gave the site its value. By providing the property, and allowing the graffiti to be done, he (the owner) is actually the creator (producer?) of the art as a whole.

[Acsenray]

@electronbee

Wow. That was a very recent ruling and I’m sure they’ll appeal it as it’s for $6M.

And, no business owner will ever allow graffiti on their property ever again and will probably prosecute with enhanced fervor anyone who tags their property.

@Really_Not_All_That_Bright

The article is a bit light on background. The 5Pointz work was done with the owner’s permission, and the owner had made hundreds of thousands of dollars in fees for allowing companies to use the site for filming. Moreover, he did not give the artists notice that he was whitewashing their work, so they had no opportunity to record it or attempt to preserve it somehow.

Note that in this case, the court found a willful violation of VARA’s right to give notice so that the creators have an opportunity to attempt to save or remove the art intact. The statute doesn’t guarantee that the artists get to keep the art on site. What was particularly galling to the court was that the property owner hastily whitewashed everything in the eight days between a denial of preliminary injunction and the court’s written opinion.

If the landowner had just held off and waited for the court to say that all he owed the artists was 90 days to attempt to remove the art intact or preserve or record it somehow, he wouldn’t have been penalized.

@RedSwinglineOne

I would think the owner could try to make the case that each individual “painting” is worthless. He could argue that is was the assemblage of the paintings that gave the site its value.

He tried that argument. The court rejected it. The court awarded statutory damages because it said that the owner had given up all right to demand actual damages after he destroyed everything hastily. (I’m not certain but I seem to recall the court using the word “petulant” to describe the landowner’s behavior.)

By providing the property, and allowing the graffiti to be done, he (the owner) is actually the creator (producer?) of the art as a whole.

That would not work under U.S. copyright law. The creator is the original owner of art until it is sold. There is an exception for a work made for hire, but there’s no way that would apply here.

[JpnDude]

The documentary Saving Banksy discusses this topic somewhat. I saw it last year on Netflix.

[OldGuy]

@Max_Torque

I’m reaching way back to law school on this one, as in more than 15 years ago, but from what I recall back then: in the U.S. anyway, the work has to be a work of some stature, in that it must be recognized by the art community as important in some way. A simple graffiti tag by a random teenager wouldn’t meet this criterion at all.

Does a work of art by a famous artist immediately become a “work of stature”? Or does it have to be admired, etc. first? If the graffiti is painted over the next morning before it’s widely seen has it not yet become a work of stature?

And if a famous artist’s work does immediately become “a work of stature” how is a random owner of the property to know it’s his/herds?

[Acsenray]

@OldGuy

Does a work of art by a famous artist immediately become a “work of stature”? Or does it have to be admired, etc. first? If the graffiti is painted over the next morning before it’s widely seen has it not yet become a work of stature?

Read the opinion:

COHEN v. G & M REALTY L.P | 320 F.Supp.3d 421... | 20180213997| Leagle.com

As the Second Circuit noted in Carter II, therefore, the courts “should use common sense and generally accepted standards of the artistic community in determining whether a particular work” is a work of visual art since “[a]rtists may work in a variety of media, and use any number of materials in creating their works.” Id.

The same common sense should be utilized in assessing whether the visual work is of recognized stature since “**y setting the standard too high, courts risk the destruction of the unrecognized masterwork; by setting it too low, courts risk alienating those . . . whose legitimate property interests are curtailed.” Christopher J. Robinson, The “Recognized Stature” Standard in the Visual Artists Rights Act, 68 Fordham L. Rev 1935, 1968 (2000). Thus, as one court has held, even inferred recognition from a successful career can be considered in determining whether a visual artist’s work has achieved recognized stature. See Lubner v. City of Los Angeles, 45 Cal.App.4th 525, 531 (1996).

In the present case, the Court need not dwell on the nuances of the appropriate evidentiary standard since the plaintiffs adduced such a plethora of exhibits and credible testimony, including the testimony of a highly regarded expert, that even under the most restrictive of evidentiary standards almost all of the plaintiffs’ works easily qualify as works of recognized stature.

And if a famous artist’s work does immediately become “a work of stature” how is a random owner of the property to know it’s his/herds?

If the property owner makes a sincere effort to notify the artist, then the artist has time to sue and get a court to decide whether the work is a work of stature.

Read the statutory language. It seems to me to be a fair compromise between the interests of the artist and the property owner:

Section 113(d)(1) of VARA provides that

In a case in which —

(A) a work of visual art 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 as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.2
Section 113(d)(2) provides, in part, that

If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless—
(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work of visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.

Note some key points:

1. The property owner can avoid this whole problem if, at the time he or she consents to the installation of the art, there is a written contract allowing the owner to destroy the work when it’s time to demolish the building.

2. The property owner need only make a reasonable effort to notify the author.

3. If the author doesn’t remove the work or pay for the removal within 90 days of being notified, then the property owner is off the hook.

Oh, and the judge used the term “insolence” to describe the property owner’s behavior in this case, not “petulant” as I suggested before.

If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.

The property owner wouldn’t have had to pay a cent if he had just demolished the building on schedule, rather than whitewashing the art for no good reason while the court case was still going on.

[OldGuy]

So it appears if I make a really fantastic snow dragon in the middle of someone’s driveway, they’re out of luck getting their car out of the garage for 90 days (unless the dragon melts first).

Or I can glue paper all over the front of a Wells Fargo bank or an abortion clinic and have it painted. Too bad about that front door of yours. I see all kinds of interesting possibilities for protests.

[dofe]

@OldGuy

So it appears if I make a really fantastic snow dragon in the middle of someone’s driveway, they’re out of luck getting their car out of the garage for 90 days (unless the dragon melts first).

Or I can glue paper all over the front of a Wells Fargo bank or an abortion clinic and have it painted. Too bad about that front door of yours. I see all kinds of interesting possibilities for protests.

Unless your snow dragon or window art is a work “of recognized stature,” that is simply not the case.

The facts in the 5Pointz case are unusual in that the owner of the building clearly profited from the work of the graffiti artists, and the work was arguably of recognized stature:

The suit against the owner of the buildings, Gerald Wolkoff, had sought to stop him from tearing down the warehouses to build high-rise luxury condos. The artists had been allowed to paint the murals in a curated system overseen by a building tenant and artist, Jonathan Cohen. Short-term walls were for beginner artists and their work would be painted over from time to time, while long-term wall space was awarded based on competition among artists. Cohen had final say over the duration of all the art work.

Though Wolkoff didn’t sell the art, he indirectly profited when the value of his site increased from $40 million to $200 million, Block said. He also made hundreds of thousands of dollars by charging licensing fees to film at the site.

Link.

[Acsenray]

@OldGuy

So it appears if I make a really fantastic snow dragon in the middle of someone’s driveway, they’re out of luck getting their car out of the garage for 90 days (unless the dragon melts first).

Or I can glue paper all over the front of a Wells Fargo bank or an abortion clinic and have it painted. Too bad about that front door of yours. I see all kinds of interesting possibilities for protests.

Highly unlikely.

(1) The modification of a work of visual art **which is a result of the passage of time or the inherent nature of the materials **is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.

Using a driveway as it was always intended to be used is not gross negligence and damage caused when someone drives over it is part of the inherent nature of the materials or the passage of time.

[Tastes_of_Chocolate]

Let’s say I somehow gain ownership of the Mona Lisa. And then I decide I hate the painting. I decide that it is so offensive that it isn’t good enough to sell it, or to hide it under the bed where no one can see it; the painting must be destroyed. So I buy myself a gallon of Home Depot’s best white paint, and a new roller, and I paint over it. The Mona Lisa is toast. A sheet of white.

As the owner, wasn’t it within my right to do what I want with the painting? How is painting over a mural/graffiti on my wall any different? Unless I told the artist that they could paint on my wall, AND keep possession of the painting, isn’t it MY wall and MY painting? Works of art change ownership all the time.

[dofe]

@Tastes_of_Chocolate

Let’s say I somehow gain ownership of the Mona Lisa. And then I decide I hate the painting. I decide that it is so offensive that it isn’t good enough to sell it, or to hide it under the bed where no one can see it; the painting must be destroyed. So I buy myself a gallon of Home Depot’s best white paint, and a new roller, and I paint over it. The Mona Lisa is toast. A sheet of white.

As the owner, wasn’t it within my right to do what I want with the painting? How is painting over a mural/graffiti on my wall any different? Unless I told the artist that they could paint on my wall, AND keep possession of the painting, isn’t it MY wall and MY painting? Works of art change ownership all the time.

Since VARA only applies during the life of the author, you can do whatever you want to the Mona Lisa on account that Leonardo Da Vinci has been dead for a few hundred years now.

The legal basis for the cases we’ve been discussing is purely statutory. Under the first sale doctrine, the owner generally has the right to do what they want to their copy of a visual work of art. As someone explained upthread, the US Congress passed legislation (the Visual Artists Rights Act, or VARA) to harmonize with international copyright standards and in response to the Berne Convention. VARA creates an exception to the first sale doctrine.

[Acsenray]

What Dofe said:

1. Da Vinci is dead so VARA doesn’t apply

2. The reason that you can’t destroy the work of a living artist is because there’s a statute that says you can’t. Or rather the creator has a cause of action against you if you do. Your ownership rights are limited by the statute.

VARA represents a type of “moral right” in copyright law that American law has adopted in only limited aspects.

Regular copyright law only protects the commercial rights of authors. Moral rights go further and say that even beyond commercial rights creators have even more rights over their works, like the right to be given credit or the right to prevent the purchaser from changing or destroying it.

[Hilarity_N.Suze]

Hm, this question has just come up in my life. Somebody posted a photo of some graffiti on NextDoor that would be perfect for a book cover I’m designing. I should note that I’m not a book cover designer but I’m cheap, and I’m reissuing an old book of mine on Kindle. I went to all the trouble to get the rights back from Random House but I can’t use the old cover and I never much liked it anyway. This would be perfect. CAn I use it? There are actually two issues here: the person who defaced somebody’s property and the person who took the picture of it. I only know who one of them is.

[Acsenray]

@Hilarity_N.Suze

Hm, this question has just come up in my life. Somebody posted a photo of some graffiti on NextDoor that would be perfect for a book cover I’m designing. I should note that I’m not a book cover designer but I’m cheap, and I’m reissuing an old book of mine on Kindle. I went to all the trouble to get the rights back from Random House but I can’t use the old cover and I never much liked it anyway. This would be perfect. CAn I use it? There are actually two issues here: the person who defaced somebody’s property and the person who took the picture of it. I only know who one of them is.

If you use the picture without permission you will be violating the copyright interests of both the photographer and the graffiti artist.

The photographer might be able to publish the photo without permission of the graffiti artist because it’s an architectural feature visible from a public street. However, this isn’t necessarily a hard-and-fast answer.

If you went to that place and took your own picture, you might possibly be violating the rights of the graffiti artist. You would be in a worse position than the photographer, because you’re not just taking a picture of something in a public place. You’re creating a commercial association between the graffiti artist’s work and your goods. But at least you wouldn’t be violating the photographer’s rights.

If you’re publishing a book, it is inadvisable for you to be “cheap” regarding the rights surrounding the cover. Properly license your cover. There are plenty of online sources where you can license rights in a cover directly from an artist for a very reasonable fee.

[StarvingButStrong]

@Acsenray

What Dofe said:

1. Da Vinci is dead so VARA doesn’t apply

2. The reason that you can’t destroy the work of a living artist is because there’s a statute that says you can’t. Or rather the creator has a cause of action against you if you do. Your ownership rights are limited by the statute.

So, if someone has painted graffiti on your property and you want rid of it, step one is to kill the artist?

[Acsenray]

This case isn’t one of random graffiti artists. The owner himself designated a curator/director for the site and himself praised his work and judgment. There was plenty of evidence that the artists were recognized and that their works had stature.

If there hadn’t been such a relationship between the landlord and the artists on site, this would be a much different case.