Last week, the Second Circuit issued a landmark decision clarifying the types of work protectable under the federal Visual Artists Rights Act (VARA) in Cohen v. G&M Realty L.P. The decision confirms that graffiti art is a form of art that deserves protection, and is a victory for graffiti artists.

What is VARA?

VARA is a copyright statute that provides an artist the right to control a work of visual art that has been incorporated into a building with the consent of a building’s owner. Under VARA, such an artist may prevent the building owner from removing the work from the building if the work is of “recognized stature” and cannot be removed without being destroyed or modified—unless the artist previously waived the right to do so in writing.

If the work can be removed and remain intact, VARA requires that the artist be informed in writing that the work must be removed at the artist’s expense within 90 days. If the artist fails to do so, the building owner may remove the work without consequence, even if removal results in destruction or modification of the work.

The absence of a written waiver of the artist’s VARA rights or failure to follow VARA’s notice requirements can result in an award of the same damages that are available for copyright infringement—including statutory damages in the range of $750 – $30,000, and up to $150,000 in cases of willful conduct.

What is notable about the Cohen decision?

Because VARA does not define what qualifies as a work of recognized stature, the main issues in Cohen were whether the 45 works of graffiti art adorning defendants’/building owners’ 5Pointz buildings were protected under VARA, and whether defendants’/building owner’s act of whitewashing their buildings and effectively destroying the adorning graffiti art were liable under VARA.

In its decision, the Second Circuit determined that all 45 works were of “recognized stature” and therefore protected by VARA. According to the Second Circuit, the ephemeral nature of some of the adorning graffiti artwork at issue is not a bar to being art “of recognized stature” protectable under VARA. Instead, “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 laying out its test for the types of works protectable under VARA, the Second Circuit noted that “expert testimony or substantial evidence of non-expert recognition will generally be required to establish recognized stature.”

The Second Circuit also determined that the defendants/building owners had not previously obtained the artists’ written waivers of their VARA rights, and that the defendants’/building owners’ act of whitewashing the works adorning the 5Pointz buildings was a flagrant disregard of VARA’s notice requirements. Thus, the Second Circuit upheld the lower court’s finding that the defendants/building owners were liable for $6.75 million in statutory damages for destroying all 45 works.

How can real estate owners/developers and artists best prepare to address or assert VARA claims?

Given the trend of incorporating art to humanize or up the wow-factor of commercial buildings and spaces (like the citizenM New York Bowery Hotel and the Wynwood Walls in Miami), real estate owners and developers that commission artwork for their buildings/spaces would be wise to obtain written waivers from artists upfront, to avoid the issues raised by VARA altogether. Because VARA does not cover a “work made for hire,” commissioning parties might alternatively consider obtaining from the artist a written agreement that memorializes the commissioned work as a work-made-for hire contribution to a “collective work.” Otherwise, VARA could apply to the commissioned work, thereby subjecting commissioning parties to VARA’s notice requirements, and if not followed, potential liability.

On the other hand, artists wishing to preserve their VARA rights should closely review any written agreement with a commissioning party, to ensure that it does not waive the artist’s VARA rights or include language designating the commissioned work a work made for hire. Artists should also take steps to register their works with the Copyright Office, and routinely record any changes in their mailing address with the Copyright Office. Though a copyright registration is not required to bring suit under a VARA action (unlike a copyright infringement suit), having a registration and a current mailing address on file with the Copyright Office can improve enforcing VARA rights by making it harder for a building owner to escape VARA’s notice requirements.

This article appeared in the February 2020 issue of MarkIt to Market. To view our past issues, as well as other firm newsletters, please click here.