An important step towards asserting graffiti artists’ rights

Posted on: November 21, 2017 by

A recent finding of a jury in a Federal District Court in Brooklyn, New York City,[1] has opened the door for greater protection for graffiti artists.

At the core of disputes between graffiti artists and the real property owners their works adorn often lies the age-old debate as to whose property rights prevail: those of the real property owner in his land and buildings or those of the graffiti artist in the intellectual property rights in his works, if indeed, such are held to subsist under legislation such as the 1990 Visual Artists Rights Act in the US (VARA) or the UK’s 1998 Copyright, Designs, and Patents Act.

In the case in question, the real estate developer whitewashed the graffiti on what had become a celebrated haven for graffiti artists known as 5Pointz in the middle of the night, allegedly without giving any prior notice to the artists. A jury verdict earlier this month found that the developers broke the law when they did so, as the artists’ moral rights and the integrity of their pieces – rights asserted under VARA legislation – were breached. Unfortunately for the artists involved, this jury verdict will serve only as a recommendation to the presiding judge, who is still to rule on the case and decide whether damages are due.

Certain parallels can be drawn with the UK case in 2015 involving a Banksy.[2] Here a graffiti mural made for the local community during the Folkestone Triennial festival was chipped off the wall by the building’s corporate owners and shipped to a commercial art gallery in New York. In that case, after a lengthy legal battle, it was decided that the mural was to be returned to Folkestone for the local community’s enjoyment, as Banksy had originally intended. The legal issues here however, revolved more around matters of property and landlord and tenant law than issues pertaining to artists’ moral rights.

We were also reminded of the story we covered almost two years ago of the struggles of well-known UK street artist Stik to recover and reunite panels of a mural created through a community project in Gdansk. The mural had been dismembered and various panels offered for sale in London galleries.

In the current 5Pointz Brooklyn case, returning the graffiti or restoring the artworks to their original state is unfortunately not possible. The upcoming ruling by the judge on both the substantive question and on damages compensation, however, will be awaited by the street art community with a keen interest. If it follows the jury’s verdict, it will give a strong boost to the potential for graffiti artists to protect their works.

[1] Cohen V. G&M Realty L.P. US NY District Court, 13-CV-05612 (FB) (RLM) (2017)

[2] Creative Foundation v Dreamland Leisure Ltd [2015] EWHC 2556 (Ch)

Photo by Aaron Harewood (5pointz graffiti), CC BY 2.0 via Wikimedia Commons

Article posted by Emily Gould on behalf of the author, Julia Casella