Hotel Can Legally Destroy Artwork, But Can't Reproduce It, Says Court

Frankfurt Kurnit Klein & Selz


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The hotel then destroyed the mural by covering it with wallpaper.
United States Intellectual Property
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What is a visual artist's remedy when a mural he painted onto the wall of a hotel bar is covered with wallpaper, and reproduced onto other wallpaper, which is displayed in another area of the hotel?  According to the District Court of Puerto Rico, the artist has no claim for the destruction of the mural (because it is site-specific; more on that later), but can sue for copyright infringement for the unauthorized copying of the work onto wallpaper.

In 2013, artist Patrick Urbain Pottier painted a wall mural in the "VIVA Bar" of the Hotel Plaza Las Delicias in Ponce, Puerto Rico.  The artist designed the mural "specifically taking into consideration the structure and architecture of that specific room in the [bar.]"  In 2016, the hotel changed the location of the bar.  Without notifying the artist or seeking his consent, the hotel copied the mural onto wallpaper (a "cheap and apocryphal reproduction," according to the artist), and used that wallpaper in the new bar location.  The hotel then destroyed the mural by covering it with wallpaper. 

Last year, the artist sued the hotel for copyright infringement and violation of his rights under the Moral Rights Act of Puerto Rico (the "PRMRA").  In ruling on the hotel's motion to dismiss, the court upheld the copyright claim, but dismissed the PRMRA claim.  As to the PRMRA claim, both parties agreed that the mural was a "site specific" work of art.  Under First Circuit law (which is binding on the District of Puerto Rico), the Visual Artists Rights Act ("VARA"), which is a 1990 amendment to the Copyright Act affording visual artists certain moral rights, does not afford any protection to site-specific artwork.  See Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) (noting the competing interests of artists and landowners peculiar to site-specific works).  In a matter of first impression, the District of Puerto Rico held that the PRMRA, like VARA, does not explicitly mention site-specific works, and therefore legislators did not intend to grant any protection to site-specific art.  (Because the PRMRA did not apply, the court did not need to address the issue of whether federal law preempts the PRMRA.) 

Although in this case the court held the artist had no moral rights, in general, property owners must carefully consider the rights of artists whose works are affixed to their buildings.  As we know from the 5Pointz litigation, which we cover here, destroying artwork painted onto buildings without notification or consent can result in costly litigation and multi-million dollar verdicts.  As to the copyright infringement claim, the hotel might have fared better had it consulted with the artist about its plans to move the bar, and sought the approval of the artist as to how best to incorporate imagery of the beloved mural in the new space in a manner that did not offend the artist.

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