Monday, September 14, 2009

"All Graffiti Will Be Removed" Are there Legal Rights for Illegal Art?

This weekend I read a story about how local public officials in Wellington, New Zealand, painted over 28 year old wall graffiti memorializing the death of the late, great, Joy Division singer Ian Curtis. Apparently, the graffiti appeared in 1981 after Curtis' untimely death at the age of 23, and since then has undergone a few small changes -- mainly by fans adding small lyrical tributes -- but generally has remained the same over the decades. The move created a bit of a local uproar, with people voicing their support -- and opposition -- to the destruction of the well known street art.
Immediately, I thought: hadn't this memorial, over time, become something more than just graffiti? Wasn't this a piece of local rock history? And even if this wasn't "historical" -- with some kind of special historical value -- wasn't it still art and worthy of preservation?
Of course, as with every piece written on graffiti, we can now trot out the well worn cliche that one person's art, is another's vandalism. But this debate gets us nowhere. We arrive, inevitably, at an impasse of differing aesthetic tastes, and we know who always wins this war--the guy with the municipal contract and white-out brush. No matter how innovative, experimental, culturally expressive or just plain cool the street art (like the graffiti in New York City's meatpacking district), it just cannot beat city hall on this point.
This is where the law is supposed to ride in on a white horse and save the day against arbitrary state authority (and aesthetics!). But can it? And should it? Does intellectual property law -- or it's cousin moral rights -- offer a means to save the Curtis memorial, or street graffiti like it?

At first glance, it seems intellectual property offers little. The street artist does retain copyright interest in his or her work, even if created illegally. But this does not stop the property owner from restoring his or her property and destroying the graffiti, it just prevents the property owner, and anyone else, from copying and/or distributing the graffiti itself without the artist's permission. So, basically I can stop you from making money off my art, but not destroying it. So much for copyright.
What about moral rights? The best possibility, at least in the United States, is the Visual Artists Rights Act (VARA) of 1990, a federal law originally meant to introduce a form of "moral rights" for artists in their work; something pretty foreign to U.S. law, but common in Europe and in the Commonwealth. VARA essentially gives artists the power to prevent mutilation and destruction of their art; but the scope of the act is quite narrow applying only to a specific class of visual art, notwithstanding who physically owns the art.
Not surprisingly, there is very little written out there on VARA and illegal art, as there is very little litigation: street artists are usually poor or impoverished; they just don't have the time or resources to bring actions and injunctions to stop destruction of their street creations. And if the graffiti is illegal, an artist would be reluctant to come forward and risk criminal or legal liability by filing suit. Still, this has been raised and arguably remains a live issue. In English v. BFC&R East 11th Street LLC, 1997 WL 746444 (S.D.N.Y. march 3, 1997) a group of New York artists, aiming to revitalize a run down community park, created a several murals and sculptures on walls and property that belonged to the city. When the city moved to develop the park, the artists sued under VARA to stop the artworks' destruction. The S.D.N.Y. ultimately held that VARA does not apply to art illegally placed on property. But in Pollara v. Seymour, 150 F. Supp. 2d 393 [N.D.N.Y. 2001], the court refused to dismiss a similar VARA claim finding there were genuine issues of "material fact" whether an illegally displayed mural was intentionally destroyed by a property manager at a hotel.
Though English seems to the best case on point, it surely isn't the final word, particularly as other courts pronounce further on the scope of VARA like the Chapman Kelley case heading to the Seventh Circuit (Check out Art Law Blog's discussion of the case). But all this law glosses over the interesting underlying debate: should illegal graffiti or street art have legal protection, or at least some forms of it? It seems absurd that an artist could deface someone's personal property and then claim damages under VARA when the property owner cleaned it up. And we can all agree that basic tagging in urban areas can be pretty annoying and ugly. On the other hand, some rare cases -- like the Ian Curtis tribute -- beg for some kind of legal protection, where artworks created on publicly (not privately) owned property have, over time, taken on a special historical, public or artistic meaning or importance. This latter point may show the way to define a special category of cases that VARA, or some other statute, ought to protect.
Or maybe not. Some likely even disagree with protection for this kind of street art, given its illegality, and maybe even its subject matter. After all, not everyone recognizes or appreciates the historical or public importance of punk's unknown pleasures. But that's why it's punk rock, I guess.


  1. Interesting post Jon. I'll caveat what I'm about to say by stating for the record that I know almost nothing about IP law.

    It seems to me that, legally, we might be able to distinguish the Ian Curtis graffiti from other types of graffiti. First, we would need to make a distinction between defacing public and private property, which you did. It'll be hard to come up with an argument that will permit any kind of artistic rights in work that was done on someone else's property.

    However, when it comes to public property things are more complicated. Of course, the state (and the people) have an interest in preserving clean and safe public areas. But can't we say that in some cases, where the graffiti has been around for many years, there is some form of "consent" by the state. One could equate this with adverse possession in the private sphere (where we are willing to overlook ownership claims) or simply a kind of statute of limitations.

    It seems that with regards to the Ian Curtis case, the monument has been around for a while, so perhaps the government's inaction itself created some kind of protected interest?

  2. Adam, for someone who claims to know "almost nothing" about IP, your legal instincts on this are right on the money.

    You are absolutely right to zero in on the public/private distinction; in fact, looking back at my post, I wish I had done a better job of emphasizing how the law ought to treat street art on public property differently from the same on privately owned property; and why. I guess the "why" just has to do with our intuitions about property rights: property held in common just seems a more appropriate venue for art that might have some public value.

    I also think your instincts on state inaction are right; it's almost like there ought to be a kind of laches: if you didn't remove the graffiti in 1980, you cannot now deface the art given its public importance.

    Maybe intellectual property and VARA are not the proper means to protect this kind of graffiti. Maybe local and muncipal heritage preservation laws and ordinances are better.

    But then, is that enough? Maybe VARA is one additional answer. Maybe not.

  3. sweet post JP.

    This reminds me of the public outcry when the iconic DKNY ad got torn down earlier this year in SoHo to make room for another store.


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