Street Art, Visual Artists Rights Act, private property and the First Sale Doctrine
I just read an article on the Sheppard Mullin blog on street art, and specifically what happens when a homeowner discovers that an original “artwork” has been painted onto the side of his house. Surely one in this situation can simply paint over this flagrant act of vandalism, right?
Probably. After all, the right to property is one of the all time leading fundamental rights in the United States. However, under exceptional circumstances, restoring the house to its pre-street arted state might subject the homeowner to extraordinary liability.
Under the Visual Artists Rights Act (VARA), ratified by Congress in 1990, artists enjoy the rights of attribution and integrity, the latter of which grants them legal recourse against those who destroy their artwork, provided the work destroyed is of a certain “recognized standard.” This requirement is generally met when their is a basic degree of professional concensus of the work’s value, or even, as Sheppard Mullin explains, if the work has existed for a decently long period of time and is valued by its local community (think street art).
In 2008, a muralist recovered over one million dollars from those who painted over his 70 foot rendition of Ed Ruscha. Ruscha, honored with the 2006 USA pavilian at the Venice Biennale, is well known for his language paintings which, in their brief declarations, share an undeniable thematic link with street art and its less distinguished relative, graffiti.
Suppose now that the most famous, most socially relevant, most important street artist imaginable has painted a masterpiece on your wall. Your home is your castle, and surely your fundamental constitutional right to property outweighs the artist’s right of integrity under VARA, right?
I would think so, after all, the policy implication of a contrary holding would be absurd. The New York District Court affirmed as much in its 1997 holding of English v. BFC&R East 11th St., LLC. 1997 WL 746444 [S.D.N.Y. 1997] But consider this hypothetical:
You own a farmhouse with a great old barn in rural America. One night, while you sleep, a burglar breaks into the Louvre and steals the Mona Lisa, flies it to the States, and attaches her to the side of your barn. Removing the painting or painting over it (of course) will destroy Leonardo’s best known work. In this scenario consider the thief a street artist, and the Mona Lisa, by virtue of the relocation, a piece of street art.
The Mona Lisa clearly meets VARA”s “stature” requirement. Disregard the fact that DaVinci is no longer alive to assert his own artist’s rights, pretend he is still alive, and rightfully pissed. Though DaVinci himself did not paint your barn (building, office, etc.) his work has become, overnight, the most important piece of street art in existence. You, the homeowner, want it off (try to exclude the fact of the paintings massive monetary value and assume the homeowner really wants to remove it). Now who prevails?
Another related issue is that of the first sale doctrine. Again, the most highly respected street artist has decorated your house. Does he retain copyrights in this work? In a word, yes, definitely. Although he has infringed your right to YOUR physical property, if you so much as photograph or make a home video of the vandalism, you may be liable for infringing HIS intellectual property. You do, however, have the right to sell the actual copy of the work the artist has left fixed to your house. That is the meaning of the first sale doctrine; the rightful owner of a copy of protected material, though he holds not the entire copyright bundle (vested in the work’s creator), may resell that specific copy under his lawful control.
Thanks to Sheppard Mullin for the stimulating article and also for quoting the ever-cheeky and o-so-hip street artist, the greatest, most socially relevant, most important of them all, Banksy: “Copyright is stupid.” Easy for you to say, fugitive.
