As street art – typically painting or drawing on someone else's wall – grows in status in art circles,1 street artists are finding that their work is increasingly being exploited without their permission. While a number of these artists have attempted to assert copyright2 or Visual Artists Rights Act ("VARA") rights to protect their work, courts have not yet had occasion to establish a legal framework in which street artists can reliably protect their work because these claims largely have ended in private settlements.
With the increasing appropriation of street art several of questions have arisen but are still unresolved by courts: Do street artists have copyright in their work? Should they be able to prevent the unauthorized copying, sale, removal or destruction of their (by and large unauthorized) work? To the extent copyright offers inadequate protection, may street artists assert VARA rights in their work?
I. Unauthorized Street Art and Copyright
For street artists who create their work on someone else's property without the property owner's permission, there is an awkward dilemma: Should street art which is the result of illegal trespassing and (arguably) criminal mischief3 be entitled to legal protection under federal copyright law?
A.Villa v. Pearson Education, Inc. Casts Doubt on the Copyrightability of Unauthorized Street Art.
The Copyright Act does not explicitly state that illegality in the course of a work's creation prevents copyrightability or is a defense to an infringement claim. Courts have addressed the copyrightability of unauthorized art on few occasions, without offering clear guidance.
Villa v. Pearson Education, Inc., decided over a decade ago, casts doubt on the copyrightability of unauthorized street art.4 There, street artist Hiram Villa, known by his pseudonym "UNONE," brought a copyright infringement suit against Brady Publishing alleging, among other things, that the publishing company reproduced his unauthorized mural in a book without his permission.5 Villa had not registered copyright in his works, however, and the court dismissed the action for that technical reason and declined to exercise supplemental jurisdiction over the artist's state law claims.6 Villa thereafter obtained a Certification of Registration from the United States Copyright Office and filed a new complaint alleging copyright infringement. Brady again moved to dismiss the complaint, arguing in part that "the mural in question is not protected by copyright . . . because it is illegal graffiti."7 The court denied Brady's motion to dismiss, reasoning in part that Brady's argument "turn[s] on questions of fact" as it "would require a determination of the legality of the circumstances under which the mural was created."8 By acknowledging a need to assess the underlying "legality" of a work's creation to assess its copyrightability, the court implicitly accepted the defendant's argument that a work's unauthorized creation on someone else's property could be a defense to copyright infringement. Ultimately, the parties reached a settlement, providing no further guidance on the copyrightability of unauthorized art.
A respectable argument exists that the circumstances in which a work of art was made, or the ownership of the physical object on which the artwork is created, should not affect the artist's copyright rights in the artwork. It is a well-established principle of copyright law that copyright is distinct from ownership rights in the physical object embodying the work. Even if the artist trespassed to make her mural, why should that permit a third party to profit off that mural by using it to sell books or handbags?
Since Villa, several other street artists have brought suit under the Copyright Act attempting to protect their work. In July 2014, Miami street artist David Anasagasti, better known by his pseudonym "Ahol Sniffs Glue," sued American Eagle Outfitters, alleging the retail brand reproduced his work in apparel advertising campaigns.9 In August of that year, artist Maya Hayuk sued Coach, the handbag retailer, claiming that the luxury brand prominently featured her "Chem Trails NYC" mural in promoting its apparel and accessories lines.10 Around that time, a trio of California-based graffiti artists sued fashion designer Roberto Cavalli S.p.A. and various retailers for reproducing their mural in marketing clothing and accessories.11 To the dismay of artists desiring legal guidance, however, all these cases settled out of court.
B. Banksy and the Splitting of Rights between Artist and Property Owner
Assuming that unauthorized street art is protectable under the Copyright Act, copyright would still not grant the artist ownership of the tangible medium of expression in which the work is fixed; that belongs to the property owner of the wall (or other object) on which the art has been created. This tension between property law and copyright law splits between property owner and artist the rights that would otherwise belong exclusively to the copyright holder under Section 106 of the Copyright Act: The property owner, who owns the physical embodiment of the work, would have the right to display and sell the original work, whereas the copyright holder would have the exclusive right to reproduce the work and prepare derivative works without interfering with the property owner's rights.
This tension between property law and the Copyright Act led to the situation in 2010 where a property owner, not the artist, sought to protect an artist's graffiti work. In that case, Bioresource Inc., claiming ownership of the site of the crumbling Packard Plant in Detroit, sued 555 Gallery over the gallery's removal of a 1,500-pound cinderblock wall featuring artwork by famously elusive British graffiti artist Banksy.12 Bioresource brought suit in Wayne County Circuit Court, arguing that the mural was worth at least $100,000.13 The parties settled the case out of court, with Bioresource agreeing to donate the mural to the gallery, which in turn agreed to pay Bioresource a symbolic amount.14
II. Unauthorized Art and VARA
In 1990, Congress enacted the Visual Artists Rights Act ("VARA"), codified at Section 106A of the Copyright Act, to protect artists' moral rights – namely, the rights of integrity and attribution. Thus, VARA entitles an author of a work of visual art to prevent intentional modification of that work "which would be prejudicial to his or her honor or reputation," prevent the use of his or her name as the author in the event of prejudicial modification, and prevent destruction of a work of "recognized stature."15 VARA provides another tool that street artists might employ to protect their creations.
A. Englishand Pollara: VARA Might Offer Protection for Unauthorized Art
In English v. BFC & R East 11th Street LLC, a group of artists brought suit under VARA seeking a preliminary injunction to prevent the defendants' unauthorized destruction of their unauthorized murals in a community garden.16 The district court held that VARA does not apply to unauthorized works of art if the works are permanently affixed to the structure, invoking public policy considerations: "[O]therwise parties could effectively freeze development of vacant lots by placing artwork there without permission. Such a construction of the statute would be constitutionally troubling, would defy rationality and cannot be what Congress intended in passing VARA."17 English's distinction between removable and unremovable works of art suggests that VARA may offer protection for unauthorized art if it is removable.
In Pollara v. Seymour, the Northern District of New York highlighted the same distinction between removable and unremovable works of art. There, the artist installed a mural in the property owners' plaza under the incorrect assumption that the company that commissioned her work had obtained a permit.18 The property owner subsequently removed the unauthorized mural from its frame and significantly damaged the work in the process.19 The artist brought suit under VARA, and the property owners moved for summary judgment, arguing in part that the work was not entitled to protection under VARA because the work was installed without permission. The court rejected this argument, reasoning that there was "no basis in the statute to find a general right to destroy works of art that are on property without the permission of the owner."20 The defendants further argued the mural was not entitled under VARA to protection against intentional or grossly negligent destruction because it was not a "work of recognized stature."21 The court declined to resolve this issue on summary judgment, finding that there were questions of fact to be decided.22 Following trial, the court ultimately dismissed the plaintiff's claim and held that the plaintiff failed to demonstrate that her mural was a "work of recognized stature," reasoning that the mural evidently was "not intended to have any lasting value."23 Whether street art may qualify as a "work of recognized stature" was addressed by the Eastern District of New York in assessing destruction to 5Pointz, discussed below.
B. 5Pointz: Preventing the Destruction of Street Art of "Recognized Stature"
In November 2013, the Eastern District of New York declined to issue a permanent injunction under VARA that would have stopped property owners' demolition of the 5Pointz "graffiti Mecca" in Long Island City, New York to make way for a residential development.24 In Cohen v. G&M Realty L.P, the plaintiffs argued that they were empowered under VARA to prevent the destruction of their mural under the VARA provision that allows the author of a work to prevent that work's destruction if it is of "recognized stature."25 The court found that some of the works in the composite piece might qualify as works of "recognized stature," but otherwise did not carry through with a VARA analysis. Instead the court noted that the plaintiffs had failed to demonstrate irreparable harm:
[P]laintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings and VARA—which makes no distinction between temporary and permanent works of visual art—provides that significant monetary damages may be awarded for their wrongful destruction. In any event, paintings generally are meant to be sold.26
The court further found the "transient nature" of the plaintiffs' work to be dispositive as to the issuance of an injunction. According to the court, the plaintiffs had always known that the walls on which they painted their murals would be destroyed.27
Although sympathetic to the artists' interests – "our souls owe a debt of gratitude to the plaintiffs for having brought the dusty walls of defendants' buildings to life"28 – the court's analysis seems to foreclose the availability of injunctions under VARA to graffiti artists, even if they are of recognized stature: under the court's reasoning, the availability of statutory damages, the existence of an art market, and graffiti's very ephemeral nature all mitigate against a finding of irreparable harm.
III. Conclusion
To the dismay of many street artists, it remains unclear whether copyright law affords protection for unauthorized street art. Villa arguably cast doubt on the copyrightability of unauthorized works over ten years ago, but no subsequent decision has gone so far as to explicitly deny copyright protection on that basis.
Under copyright law, the artist's rights in street art conflict with those of the property owner insofar as the property owner owns the tangible original work. The tension between artist's rights and the property owner's rights resurface under VARA, but in a different guise. In that context, the issue is whether an artist can assert moral rights in street art and thereby freeze the development of a building. That very policy concern led the court in English to deny VARA protection to an unremovable, unauthorized mural.
Given the unsettled state of the law, there remains the policy-oriented question of whether such works should be copyrightable. Insofar as copyright law is intended to incentivize creation, assuming that street art is a practice that at least sometimes has value to the public, does the creation of street art benefit under a regime of copyright? In other words, is copyright necessary to incentivize the creation of more street art? The proliferation of street art in the absence of robust intellectual property protection probably suggests a negative answer to that particular question.
Conversely, if illegality in creation is a bar to copyrightability, the tension between property rights and copyright still does not disappear. If we care seriously about property rights, should copyright law extend rights to a book publisher, for instance, seeking to profit from the underlying, unauthorized work?
Finally, there is a fundamental tension when street artists – whose very genre of art is premised on its "outlaw" nature – ask the courts legal protection under the Copyright Act or VARA.
Footnotes
1. See e.g., Allison Young, "Making Money by Mocking Power: Inside the New Banksy Exhibition," CNN WORLD (Oct. 24, 2016), http://www.cnn.com/2016/10/24/arts/the-art-of-banksy-melbourne/ (Stating that street artist Banksy, who has stenciled graffiti in New York, London and Melbourne and other places, "is one of the most influential artists in the world."); see also, "Street Art Expo NYC 2016 Celebrates Three Generations of Graffiti Art with: Part One, Flint Gennari, Alski, Nic 707, Moody Mutz, Plasma Slug, Chief 69 and more," Street Art NYC (May 24, 2016), http://streetartnyc.org/blog/2016/05/24/street-art-expo-nyc-2016-celebrates-three-generations-of-graffiti-art-with-part-one-flint-gennari-alski-nic-707-moody-mutz-plasma-slug-chief-69-and-more/; see also Jonathan LeVine Gallery, http://jonathanlevinegallery.com/tag/street-art/; Lowbrow Artique, http://www.lowbrowartique.com/gallery/; Woodward Gallery, http://woodwardgallery.net/; Museum of the City of New York, https://collections.mcny.org/Gallery/24UPN47RMLQ.
2. Under United States copyright law, a work receives protection if it is an "original work of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102. A work is "original" if it was "independently created" and possesses "at least some minimal degree of creativity"; it need not be novel. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). A work is "'fixed' in a tangible medium of expression when its embodiment in a copy . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C. § 101. Copyright entitles the owner to a set of exclusive rights, including the right to reproduce the work, prepare derivative works, distribute copies, and, for certain types of works, display the work. 17 U.S.C. § 106.
3. N.Y. Penal Law § 145.60 makes it a Class A misdemeanor to make an "etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property . . . 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."
4. Villa v. Pearson Educ., Inc., No. 03 C 3717, 2003 WL 22922178 (N.D. Ill. Dec. 9, 2003).
5. Id. at *1.
6. Id. at *1.
7. Id. at *2.
8. Id. at *3.
9. Anasagasti v. American Eagle Outfitters, Inc., Case No. 1:14-cv-05618 (S.D.N.Y. July 23, 2014).
10. Hayuk v. Coach Services, Inc. et al, Case No. 1:14-cv-06668 (S.D.N.Y. Aug. 19, 2014).
11. Jason Williams et al v. Roberto Cavalli, S.p.A. et al, Case No. 2:14-cv-06659 (C.D. Cal. Aug. 25, 2014).
12. The Associated Press, Banksy Battle: Packard Plant Ownership Sues Detroit Art Gallery for Removal of Graffiti Mural, MICH. LIVE (July 7, 2010), http://www.mlive.com/news/detroit/index.ssf/2010/07/banksy_backlash_packard_plant.html.
13. Id.
14. Anne Laure Bandle, Andrea Wallace & Marc-André Renold, Banksy Mural – Bioresource, Inc. and 555 Nonprofit Studio/Gallery, Platform ArThemis, https://plone.unige.ch/art-adr/cases-affaires/banksy-mural-2013-bioresource-inc-and-555-nonprofit-studio-gallery.
16. English v. BFC&R E. 11th St. LLC, No. 97 CIV. 7446 (HB), 1997 WL 746444, at *1 (S.D.N.Y. Dec. 3, 1997), aff'd sub nom. English v. BFC Partners, 198 F.3d 233 (2d Cir. 1999).
17. Id. at *4.
18. Pollara v. Seymour, 150 F. Supp. 2d 393, 394 (N.D.N.Y. 2001).
19. Id.
20. Id. at 396 n.4.
21. Id. at 396.
22. Id. at 399.
23. Pollara v. Seymour, 206 F. Supp. 2d 333, 337 (N.D.N.Y. 2002), aff'd, 344 F.3d 265 (2d Cir. 2003).
24. Cohen v. G&M Realty L.P., 13-CV-5612 (FB) (E.D.N.Y. Nov. 20, 2013).
25. Id. at 3.
26. Id. at 24-25 (citation omitted).
27. Id. at 26.
28. Id. at 23.
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