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10 Comments on "Graffiti: Legal or Illegal?"

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In the case of the 5 pointz Graffiti and VARA, it is important to note that this was an issue that could have been very easily avoided had the parties been in communication. Those against the artists and for the developers would note that it is their property and that they are allowed to do anything with it. To have to preserve the work by maintaining the shoddy buildings would be an unreasonable hold on their rights. However, to suddenly and without warning remove the graffiti is likewise an unreasonable breach of the artist’s rights. Had they simply given the… Read more »

I think it could be argued that the phrase “…inherent nature of the materials…” could be applied to the reasonable assumption that the walls of dilapidated buildings are by their inherent nature a temporary “canvas” and should be reasonably expected to be painted over and/or torn down.

For the record, I love the art, but disagree with the artists on this issue for several reasons, not the least of which is the potential chilling effect on future permission by building owners.

Another anonymous
The rights of VARA do not exist in a vacuum, they exist alongside all other rights. I don’t know if the lawyers for the developer would include common law jurisprudence in their argument, or if the jury would take it upon themselves to consider it. I find it unlikely that it would be considered during the trial. However, an appeals court would certainly weigh common law jurisprudence against VARA, and I don’t see how VARA could come out on top. The tradition and rules related to real property span centuries and predate the US. Undoubtedly the lawyers for the developer… Read more »
Being someone who is attracted to unique IP cases, I found this post to be a very interesting read. One thing I found particularly intriguing (aside from the fantastic photographs of the 5Pointz Mecca), was learning about the unique fusion of real estate and copyright law where VARA applies. I never realized how much IP could impact other useful fields of law, and now I’m curious to read up on other areas of law that cross paths with IP. I could not believe G&M Realty LP would want to destroy the artistic anomaly that was 5Pointz, yet have the audacity… Read more »
Andrew K.

What are the consequences moving forward for real estate developers who violate VARA? Does the artist receive compensation for someone destroying their mural without consent? Does the one who destroys the mural spend time doing community service? Where is the part where the developers are held accountable?

Coasean Bargaining: The developer and artists in this property transaction could have easily optimized their intellectual and real property interests had they been involved in coasean bargaining at the outset of negotiations for their respective property rights. The Coase Theorem, coined by the famous economist Robert Coase, dictates that in the absence of transaction costs, clearly-assigned property entitlements will flow to their highest valued user, regardless of to whom they are initially assigned. This theorem is designed to reveal the importance of transaction costs in the design of legal institutions. This case, however, illuminates the realities of Coase Theorem analysis… Read more »
In response to Federal Judge Frederic Block’s decision on February 12, 2018, awarding $6.75 million to plaintiff graffiti artists, defendants moved to vacate the judgment or grant a new trial. Defendants argued that none of the plaintiffs’ art qualified as works of “recognized stature” as required under the Visual Artists Rights Act of 1990 (“VARA”). Furthermore, they claimed that the damages were excessive, arguing that defendant Gerald Wolkoff, who white-washed the graffiti-painted walls, had not acted willfully. On June 13, 2018, Judge Block issued a detailed decision that boldly explained his reasoning for rejecting defendants’ motions. Willfulness In his reasoning,… Read more »
In or about February 2018, Judge Frederic Block awarded $6.7 million to a group of 5Pointz artists who were suing Gerald and David Wolkoff for destroying their art. This case brought up many different facets of the law including VARA (Visual Artists Rights Act) giving artists rights to authorship of their art, only if the art was created and signed by the artist. Gerald and David Wolkoff have filed for an appeal on the matter stating that “whitewashing the art on the building is not in violation of VARA”. “We didn’t feel the decision was the correct one,” David Wolkoff… Read more »
The federal Visual Artists Rights Act (VARA) grants artists limited rights over visual works that they create but do not own. The act prevents the destruction of a work recognized by the statute, and any intentional or grossly negligent destruction of that work. Therefore, even if a building owner owned a work, because the owner allowed the artist to paint on his property, the artist would still be entitled to the limited rights provided by the VARA. The question becomes, how does this right of the artist compete with the property right of the owner? As a starting point, who… Read more »