That Graffiti Could Be Art

by | Feb 16, 2021 | Waivers & Releases

Property owners find themselves having to clean up or paint over graffiti sprayed on portions of their buildings.  It’s annoying and expensive, and could be more complicated than you might think.You see a group of graffiti artists sued a developer who had whitewashed their work.  The artists relied on the little-known Visual Artists Rights Act (VARA), something actually added to the United States Copyright Laws in 1990.  A jury entered a verdict in the artists’ favor and awarded them almost 7 million dollars in damages, based on the allowable statutory damages of $150,000 for each of the 45 murals the developer had painted over.  An appeal followed but the court affirmed both the liability and the award. 

Ouch! The consequences of this decision are obvious. 

Simply removing unwanted graffiti on one’s building façade is no longer an easy choice, especially if the graffiti is actually a “visual art piece.”  After all, someone’s street art can be someone else’s creative accomplishment. VARA requires a signed waiver from the artist before any work can be distorted, destroyed, mutilated or modified.  And while much of the graffiti we see these days is an eyesore and the result of vandalism, there are a number of property owners who have actually encouraged artists to contribute colorful designs and paintings to the outside of their buildings. Most recently, we have even seen some pay tribute to the pandemic caregivers by commissioning specific appreciation murals.  Clearly, what this lawsuit and resulting judgment point out is that building owners must now be very careful in removing or painting over the graffiti on their buildings. Who would have guessed? 

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