On Thursday, February 20, 2020, the United States Court of Appeals for the Second Circuit released a long-awaited final ruling on an issue of first impression regarding interpretation of the Visual Rights Act of 1990 (“VARA”). VARA provides unique federal protection granting artists of eligible visual artworks, regardless of whether the artist is the copyright owner, certain moral rights in their visual works. The rights include the ability to prevent any “intentional distortion, mutilation, or other modification” of their work that would be prejudicial to the artist’s “honor or reputation,” and to prevent any destruction of a work of “recognized stature,” of which any “intentional or grossly negligent destruction” is a violation of the artist’s moral rights. 17 U.S.C. § 106A.

In Castillo v. G&M Realty L.P., No. 18-498-CV, 2020 WL 826392, *1 (2d Cir. Feb. 20, 2020), the Second Circuit upheld a $6.75 million fine against a real estate developer for willful violation of VARA. A New York aerosol artist, Jonathan Cohen, was first asked by real estate developer Gerald Wolkoff to install artwork in a series of dilapidated warehouse buildings Wolkoff owned in Long Island City, New York. G&M Realty L.P., No. 18-498-CV, 2020 WL 826392. The site became known as 5Pointz, a major global center for aerosol art and home to a total of approximately 10,650 works of art. Id. at *2. Shortly after Cohen learned of Wolkoff’s municipal approval requests to demolish 5Pointz to build luxury apartments, Cohen brought suit against Wolkoff under VARA. Id. Wolkoff then whitewashed the art from the site. Id.

The case made its way to the Second Circuit on appeal of the issue of whether the works at 5Pointz were works of “recognized stature” that are granted protection from destruction under VARA. Id. at *3. Upon review, the Court upheld the lower court’s decision that Wolkoff’s act of whitewashing the artwork was a “willful” violation of VARA, holding that a work of art is of “recognized stature” within the meaning of VARA when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community comprised of art historians, art critics, museum curators, gallerists, prominent artists, and other experts. Id. at *4. The Court found that Wolkoff’s violation of VARA was “willful,” or an “act of pure pique and revenge,” because Wolkoff admitted his awareness, prior to whitewashing 5Pointz, that the artists were bringing VARA claims against him. Id. at *3. The Court expanded, “A work’s high quality, status, or caliber is its stature, and the acknowledgement of that stature speaks to the work’s recognition.” Id. at *4. Although Wolkoff argued that because the artists were aware that the 5Pointz buildings might be torn down and thus the artists should have expected their work to be destroyed, the Court made it clear that VARA does not adopt categories of “permanent” and “temporary” artwork. Id. at *6. Thus, artists rejoice in this ruling, for it sets precedent that VARA is enforceable against acts of destruction of their visual works, even including non-traditional pieces such as graffiti.

Implications for Building Owners and Real Estate Developers

Building owners and real estate developers should become familiar with VARA as it may bear on their plans to either install visual art at an existing site or modify a structure that contains incorporated artwork.

VARA applies to works of visual art covered by the statute that are created on or after December 1, 1990, and the rights conferred by VARA endure for a term consisting of the life of the artist. 17 U.S.C. § 106A (d)(1). VARA does entail provisions protecting visual artwork apart from circumstances when the artwork is installed in or on a building. With respect to artwork incorporated into a building, the rights may be waived in advance. VARA does not afford an artist of artwork incorporated into a building protection against the destruction of their work if the artist has consented to the installation of the work in the building either before December 1, 1990, or in a written instrument executed on or after December 1, 1990 that is signed by the owner of the building and the artist and that specifies that the installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal. 17 U.S.C.A. § 113(d).

However, with respect to artwork incorporated into a building, where the artist has not waived his or her moral rights, VARA provides specific guidelines for building owners. For instance, VARA provides for protection against the removal of the artwork incorporated into a building in such a way that causes “destruction, distortion, mutilation, or other modification of the work,” and violators face potential suit for actual damages and profits or statutory damages. Id. The statutory damages are fixed between $750 and $30,000 per work, but VARA authorizes damages of up to $150,000 per work if the plaintiff establishes the defendant’s violation of VARA was “willful.” 17 U.S.C. § 504(c). If incorporated visual art can be removed from the building without destruction or other modification, VARA requires building owners to provide notice to the artist in writing of such removal; the artist then has 90 days to either remove the work or pay for its removal. 17 U.S.C.A. § 113(d).