Graffiti has become much more than spray-painted tags and quickly disappearing pieces on train cars and underpasses. In some quarters it is now high art. The artists use their publicly visible, spray painted works to develop artistic credibility, publicity, designer contracts, and sales potential for works made on more traditional surfaces or for installations in large spaces. In some neighborhoods commercial establishments, businesses, and warehouse owners encourage artists to paint large, complex pieces on their walls to attract artists to the community. They hope the arrival of creative souls will encourage neighbors, developers, and entrepreneurs to rehabilitate run down buildings as loft, studio, and gallery spaces. Bushwick in Brooklyn is a prime present-day example of the trend.
Many of the artists working in Bushwick moved to the neighborhood after the famous graffiti zone at 5Pointz was demolished. The Bushwick Collective is now a vibrant organization working with neighborhood businesses and residents to bring in artists from all over the world to create major pieces. My wife and I took a walking tour through the area last autumn and were astounded at the beauty and quality of many of the pieces. The high level of detail in much of the work forced us to constantly recall that the images we saw were made using spray paint. Here are two examples we photographed, both made by artists from overseas.
The dramatic changes in the nature and importance of graffiti have created major shifts in and problems for copyright law. The tensions are very evident in the most recent judicial opinion in the moral right dispute between artists at the very well known graffiti site of 5Pointz in Long Island City in Queens and the developers who destroyed the highly decorated buildings for construction of two large apartments.
The site emerged as an important artistic destination in 2002 when a principal of the site developer, Gerald Wolkoff, sought out Jonathan Cohen, one of the artists working at the site, and asked him to manage and control the creative endeavors. Wolkoff claims he told Cohen that he would eventually demolish the structures and redevelop the site but that he wanted someone to organize things at the site during the interim period. Under Cohen’s watchful eye, the area became an internationally recognized center for graffiti. It was that fame that led to litigation when development plans finally were revealed and demolition of the old commercial buildings loomed. New apartments are now under construction. Here is one view of the site during the graffiti heyday.
When the apartment project was announced a group of artists working at 5Pointz sought to enjoin demolition of the site under the Visual Artists Rights Act (VARA). Under very limited circumstances this part of the federal copyright law bars the destruction of works “of recognized stature” that are attached to or part of a building. Judge Frederic Block, sitting in the United States District Court, refused to grant a preliminary injunction, holding that damages were an adequate remedy if and when the graffiti was destroyed. The court noted that much of the work probably was not of recognized stature, and that graffiti, like most art, can be valued in a market. He also opined that graffiti artists had long assumed that their work was temporary and that the evanescence of their endeavors was part of its aesthetic. Under those circumstances, he argued, preservation of 5Pointz’s art was a task for the city as a potential park administrator, rather than a mandate of federal law. The night after the preliminary injunction was denied Wolkoff arranged for most of the graffiti to be sprayed with white paint. By morning the vast bulk of the art was destroyed.
The artists, however, continued the litigation by seeking damages. If their work was of recognized stature it is clear that Wolkoff violated VARA by tearing down the buildings without having a written agreement allowing for that occurrence or giving the artists an opportunity to remove their creative work. That reality was recognized about ten days ago when Judge Block declined to grant the defendants summary judgment and set the case for trial on the issue of whether any of the work was of recognized stature.
Putting aside the perhaps ineffable question of what might be a work of recognized stature, the case presents at least three other fascinating issues about the relationships between graffiti and copyright. First, it is an indication that graffiti has “come of age.” The notion that tagging would grow into a major art form of “recognized stature” was certainly far from virtually everyone’s mind half a century ago. While all art aficionados know that artistic tastes and movements continually change—sometimes in radical ways—few could have imagined that street art once routinely described as vandalism would emerge as heralded creativity. Shepard Fairey, perhaps the first graffiti artist internationally acclaimed by those other than street artists, got his start by pasting stickers on objects and buildings while a student at Rhode Island School of Design in the late 1980s. His Hope Poster for the Obama campaign in 2008 made him famous. He, his many colleagues, and now the 5Pointz dispute, herald a new artistic and legal age for the genre.
Second, the 5Pointz case suggests that there now is a deep set of contradictions inherent in street art in general and “great” graffiti in particular. Until recently graffiti was almost always painted over. Virtually no one assumed it was or should be permanent. Indeed its temporary quality was and is a deeply engrained part of its aesthetic. Doing graffiti was an act of rebellion, a rejection of the fetishizing of “great” art, and a celebration of the sometimes hasty act of creation. Since much of it was illegal and therefore risky to make, the expectation that it would be painted over or washed off was an accepted part of the culture. With 5Pointz and other now famous outdoor works like those of Banksy, there is a growing desire even among those who previously scorned the work to preserve it. In addition, entrepreneurs and developers now see graffiti, if done “right,” as a spur to development. Graffiti has become part of the monetized art world. These shifts in attitude, of course, undo much of the basic aesthetic core of graffiti. Rather than celebrating an act of rebellion, it is gradually becoming subject to the same fetishist instincts that now govern major art museums and galleries.
Finally, there now are legal and financial risks to building owners who allow graffiti to be painted on their walls. The existence of a right held by artists under VARA to resist the mutilation or destruction of their work—if it is of recognized stature—means that building owners will begin to call in the lawyers to draft agreements under which artists will be asked waive their VARA rights. Since under the Copyright Act such waivers must be piece specific, contracts will have to be repetitively signed each time a new work is created. This hardly is the world rebellious street artists envisioned when they began tagging buildings and mailboxes and making large pieces on subway cars during the 1970s.
Is it time for a new artistic rebellion? What will it look like?
. For more information see http://www.freetoursbyfoot.com/bushwick-graffiti-bushwick-collective/ (Visited Apr. 9, 2017).
. It may be found at https://upload.wikimedia.org/wikipedia/commons/9/99/5_Pointz_27.jpg (Visited Apr. 9, 2017).
. 17 U.S.C. §106A.
. 17 USC §113(d) provides:
(1) In a case in which—
(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,
then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.
(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless—
(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work of visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.
For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author.
. Cohen v. G & M Realty L.P., 988 F.Supp.2d 212 (E.D.N.Y. 2013)
. The image is at http://www.nbcnewyork.com/news/local/5Pointz-Graffiti-Painted-Over-Whitewash-Developer-Queens-232503761.html (Visited Apr. 9, 2017).
. Cohen v. G & M Realty L.P., 2017 WL 1208416 (E.D.N.Y. Mar. 31, 2017).
. Toronto is one of many cities where the work of reclusive Banksy has been preserved. See http://www.ctvnews.ca/entertainment/banksy-behind-glass-artwork-gets-new-toronto-home-1.3284577 (Visited Apr. 9, 2017). In this case a section of cement with a Banksy work was integrated into a new development.