A Moral Right to Graffiti?

A group of high-profile New York aerosol artists is attempting to invoke a seldom-used US statutory provision to prevent the destruction of a collection of buildings containing its works of graffiti. The buildings known as 5Pointz are an outdoor art space for aerosol artists and the self-described “graffiti Mecca” of the world. Over the past 20 years the space has accumulated over 350 works on its walls. When plans were recently announced to demolish 5Pointz in order to construct residential apartments, the artists sued.

The statement of claim filed by the artists alleges, among other things, that the honour and reputation of the artists will be damaged if 5Pointz is destroyed or modified. To those who are familiar with copyright actions, this is a fairly classic moral rights argument. However, unlike countries such as Canada, France and Germany, the US does not provide authors of all copyright protected works with moral rights: only limited moral rights protection to creators of works of visual art under the Visual Rights Artist Act (VARA).

VARA §106A(a)(3) gives the author of a work of visual art two separate rights, although the two rights are somewhat conflated in the statement of claim.

The author of a work of visual art has the right

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) 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 first right allows the artists to prevent the distortion or mutilation of works that will be detrimental to the artists’ reputations. The initial debate is therefore likely to turn on whether the destruction of the buildings, or even a portion thereof, containing the aerosol artists’ work will be prejudicial to each artist’s honour or reputation. Early decisions in Canada were reluctant to hold that the destruction of a work qualifies as “distortion, mutilation or other modification” or even that it is prejudicial to an artist’s reputation:^[1] once a work is out of sight, it is generally out of mind.^[2] But subsequent reforms to the Copyright Act deem prejudice to reputation if the work being distorted, mutilated or otherwise modified is a painting. Unlike the Copyright Act, VARA contains no similar deeming provision for paintings. The artists must therefore prove prejudice to their reputations.

In this case, 5Pointz is world famous and extensively photographed, and so the aerosol artists’ reputation may not suffer from the destruction. If anything, the destruction of the property may actually drive up the value of the artist’s reputation by limiting the number of people who have ever had a work on the site. After all, art loves scarcity.

The second right provides the artists with the ability to prevent the complete destruction of their works if it can be demonstrated that the works are of a recognized stature. However, recognized stature is not defined in the statute. Given the fame of 5Pointz the artists may be able to show that their works are well recognized and have legitimate stature in the art world. The multi-million dollar successes of street artists such as Banksy and Shepard Fairey demonstrate how large a space graffiti have firmly established in mainstream art culture. If the owners of a museum were intending to destroy a one-of-a-kind painting, similar arguments could be raised. Why should works painted on brick by aerosol be given any less legal protection than works painted on canvas by brush?

In the leading US case^[4] on the application of VARA to graffiti the court held that public policy reasons should prevent graffiti artists from asserting moral rights over works added to another’s property illegally or without consent. But what makes this case unusual is that all of the graffiti at 5Pointz were apparently done legally with the knowledge and consent of the buildings’ owner. Moral rights to graffiti works done with consent appear to be untested in US courts.

For artists and legal professionals, the lesson here is that moral rights can turn up in unlikely places and it is unwise to ignore them. In Canada, the Copyright Act grants authors, including visual artists, moral rights of integrity and attribution. However, the limits of these rights are largely untested, particularly as they relate to aerosol artists. The outcome of the 5Pointz action may therefore assist the development of Canadian law in this area.

For the time being, the 5Pointz lawyers have said that the plaintiffs have been granted a temporary restraining order and are waiting to learn if they will be granted a hearing for a preliminary injunction. IP Osgoode will maintain a watching brief on developments.