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Is graffiti art protected under the Visual Artists Rights Act?

By its very nature, graffiti art is often public, immovable and temporary. And the artists that specialize in this medium frequently believe that these characteristics make graffiti art exempt from copyright protection. However, a recent ruling issued by a U.S. District Court judge could signal a major shift in the way that graffiti art and the artists that create it are protected under federal law.

In the ground-breaking case decided on February 12th, 21 graffiti artists in New York were awarded $6.7 million in statutory damages  when the owner of the building that the graffiti art adorned painted over the artworks. U.S. District Judge Frederic Block held that the 45 pieces of graffiti on Queens' 5Pointz warehouses were subject to the protections offered by the Visual Artists Rights Act thanks to their "recognized stature."

The Visual Artists Rights Act (VARA) modifies existing copyright law and provides artists with the right to receive attribution for their artwork as well as protecting the integrity of visual works. Specifically, the right to integrity under VARA means that visual artists have the right "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right." The statute makes it possible for visual artists to seek damages for any defacement or alteration to their artwork that reflects negatively on the artist's reputation.

In this case, the "recognized stature" of the graffiti art in question was established by the curated process through which the artists were allowed to create their work as well as the increase in value of the warehouses and the income that the owner, Gerald Wolkoff, generated through licensing fees paid to film at the warehouses.

Experts in the art law field note that this decision marks the first time that graffiti artists and their works have been explicitly deemed to be covered by VARA's protections. Block did note that VARA contains an exception for any immovable pieces of art (such as graffiti art on the side of a building); however, this exemption only applies if the artist actively waives his rights to protect his work in writing, which did not occur in this case.

In finding in favor of the graffiti artists, this case has paved the way for VARA's protections to be extended to graffiti artists nationwide, affording these artists additional copyright protections over their work--even when that work is on the side of a building owned by another.

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