Street Artists Get Confirmation of Copyright Damages Award of $6.75M
September 9, 2020
A $6.75 million damages award for a group of street artists that had their works whitewashed by a building owner was upheld by the U.S. Court of Appeals for the Second Circuit. Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020). This decision supports prior rulings that establish the value of street art existing on public or private structures even though the art may be temporary. The Visual Artists Rights Act of 1990 (“VARA”) provides a legal framework for moral rights for artists. See 17 U.S.C. §106A. Pursuant to VARA, the artist has the right to “prevent any destruction of a work of recognized stature” and provides that “any intentional or grossly negligent destruction of that work is a violation of that right.” Id. at §106A(a)(3)(A). Damages for violations of VARA are governed by general copyright law, which include actual and statutory damages.
In 2002, an owner of a group of dilapidated warehouse buildings in Long Island City, New York, enlisted a distinguished aerosol artist to turn the buildings into an exhibition space for artists. The site became known as 5Pointz and was recognized as a major global center for aerosol art that was covered by the media and visited by tourists and celebrities. Some of the art at 5Pointz was visible permanently, but most of the art was temporary and was repeatedly painted over.
About ten years later, the owner decided to demolish the warehouse buildings to develop luxury apartments. Upon hearing of this plan, the group of artists undertook procedural and legal actions to prevent destruction of the site and the works of art thereon. The legal wrangling went on for years, and after a judge denied a preliminary injunction to prevent destruction of the site, the owner whitewashed the artwork despite the pending legal proceedings. The court found that this behavior was unnecessary and done out of spite for the artists that were simply attempting to protect their works.
Ultimately in its findings of fact and conclusions of law, the court could not determine actual damages for the losses of the works of art, but ruled that each work that had achieved “recognized stature” was subject to statutory damages and allowed for a maximum award of damages due to the owner’s willful actions. With 45 works that achieved “recognized stature,” the court awarded maximum statutory damages of $150,000 each for a total award of $6.75 million. While the owner argued numerous issues on appeal, including statutory interpretation, liability, and damages, the appellate court ruled that the evidence on record sufficiently supported the decision and affirmed the judgment.
While the property owner’s frustration is understandable, his vengeful actions against the street artists that were simply exercising their rights to protect the works of art under VARA led to this substantial award. As a property owner, if you decide to allow artists to create works of art on your property, then make sure that you understand the copyright issues, corresponding statutes, and the legal procedures involved with protecting your rights in the property. For example, waivers that were signed by the artists and complied with the copyright statutes would have gone a long way to protect this property owner. See 17 U.S.C. § 113(d).
The Opinion from the U.S. Court of Appeals for the Second Circuit can be found here – https://cases.justia.com/federal/appellate-courts/ca2/18-498/18-498-2020-02-20.pdf?ts=1582212604
Dustin Mauck focuses his practice on intellectual property and technology disputes, counseling, and licensing.
RegitzMauck PLLC is an intellectual property boutique based in Dallas, Texas. The firm focuses on providing value-based legal services to cost-conscious clients seeking high quality legal representation in intellectual property and technology matters and disputes.