Why the Visual Artists Rights Act Is Failing

In battles between artists’ rights and property rights, property rights have a way of winning. The recent, high-profile whitewashing of Long Island City’s 5Pointz murals—a developer intends to build apartments on the site—is just one example in a long series of conflicts between property owners and artists. Originally, artists had no recourse. When Diego Rivera painted a fresco at Rockefeller Center, John D. Rockefeller Jr. objected to the artist’s including a portrait of Lenin. In 1934, when Rivera refused to paint over the portrait, Rockefeller had the entire fresco chiseled off. In 1989, Richard Serra’s controversial Tilted Arc (1981), a mammoth 120-foot-long, 12-foot-high steel sculpture that ran across Manhattan’s Federal Plaza, was cut into three pieces and dismantled in one night.

The federal Visual Artists Rights Act (VARA), enacted in 1990 in the wake of the removal of Tilted Arc, was supposed to change all that. The law grants artists the rights to prevent intentional modification to their art and the destruction of a work of “recognized stature.” But how effective is it? “Lots of murals are being destroyed now,” says Brooke Oliver, pointing to gentrification and redevelopment. “Property rights are king.” Oliver is representing muralist Daniel Fontes in a lawsuit against an Oakland auto dealership.

“It’s a light burden. All they have to do is give notice at the artist’s last-known address and wait 90 days for the artist to remove it at his own expense.”

Artists often don’t stand a chance of saving their art. One day it’s there, the next day it’s gone. The best they can hope for is some compensation after their work has been destroyed. “All it takes is one person to destroy something and additional people to carry out the task for paychecks,” says artist Kent Twitchell, who won a $1.1 million settlement after his 1987 mural of Ed Ruscha was painted over in 2006.

VARA doesn’t force owners to keep art indefinitely. It only requires them to give artists 90 days’ notice of their intentions so the artists can take it down themselves, but the owners frequently don’t. “People were howling that [VARA] would impede property rights,” says Oliver. “But it’s a light burden. All they have to do is give notice at the artist’s last-known address and wait 90 days for the artist to remove it at his own expense.”

Why don’t developers give artists the notice required by law? Experts disagree. “They don’t know about it,” says A. Eric Bjorgum, who represented Twitchell in the Ruscha mural case. “They don’t recognize the value of art,” says Oliver. “Greed,” at least in the 5Pointz case, says the muralists’ lawyer Eric Baum. Legal counsel for the defendants in the Fontes case did not respond to inquiries, and the developer’s lawyer in 5Pointz declined to comment.

VARA still places the burden of removing the art on the artist—an added cost. “Once an artist gets a 90-day notice, they can’t afford to do anything,” Bjorgum says. VARA effectively favors well-off, better-known artists. “It’s the bloody truth,” says art lawyer Scott Hodes of the law firm Bryan Cave. There aren’t a lot of lawsuits, he says, because few artists can afford the legal fees. Their only other option is to “find a lawyer with so much confidence [of a victory] that the law firm is willing to front the fees,” which, if the artist wins, the judge can order the owner to pay. Further, owners often require artists to give up their VARA rights in the commissioning contracts. Only the more famous artists have the negotiating power to refuse to do that, he says.

The artist asked, “Do you think I’ll ever get another commission from the city?” “Probably not,” Hodes replied, so they didn’t sue.

Even artists who can afford to go to court might choose not to because litigating could put their future income at risk. Hodes recalls a case that would have been a sure winner. The artist asked, “Do you think I’ll ever get another commission from the city?” “Probably not,” Hodes replied, so they didn’t sue.

VARA’s reach is limited. “It protects only narrow categories of art,” says Roberta Kwall, the Raymond P. Niro Professor of Intellectual Property Law at DePaul University College of Law. It excludes works for hire and a lengthy group of objects that U.S. copyright law does not deem to be “a work of visual art,” including “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture, or other audiovisual work.” Judges have added other limitations. For example, the federal appeals court in Massachusetts ruled in 2006 that “VARA does not apply to site-specific art at all,” even though it recognized that changing the arrangement of David Phillips’s sculpture in Eastport Park in South Boston effectively destroyed the work. If site-specific art comes under the VARA umbrella, the court wrote, the work couldn’t be altered without the artist’s consent and that “could dramatically affect real property interests and laws.”

Another obstacle for artists is that only works of “recognized stature” can be saved from destruction. VARA doesn’t define the term. At the very least, says attorney Hodes, “‘recognized stature’ refers to the work of art itself, not the artist. But the more famous the artist, the more reasonable it is to find it’s of recognized stature. No one will fight a well-known artist.” By contrast, when the 5Pointz street artists asked the court to prevent the destruction of their paintings, Brooklyn federal judge Frederic Block ruled against them. “Some people are still skeptical about street art,” says Baum, their attorney. “They still see it as graffiti on a subway train.”

In his decision, the 5Pointz judge recounted the testimony of an expert for the defense. She testified that the works weren’t of recognized stature because the artists hadn’t been the subject of scholarly attention, most of them didn’t come up in Google searches, and, although 5Pointz attracted tourists, they came to see a popular tourist site and not a particular work of art. The artists presented an art expert with a broader view of “recognized stature,” who pointed out that some of them had exhibited in a Brooklyn Museum show of graffiti art. “Not even Kent Twitchell gets written up in art journals,” says lawyer Bjorgum, despite the fact that Twitchell’s murals have graced Los Angeles’s urban landscape for decades. “Maybe we need a lower standard,” he adds. Professor Kwall agrees: “VARA should apply to more art.”

“Landowners would be more willing to put things on their buildings if they know they won’t be sued. I’ve sued property owners, and they say, ‘I’m not going to ever have art again.’”