Mural Support

In January, American artist Katherine Craig filed a lawsuit to protect her public artwork, The Illuminated Mural, created in 2009 on an Albert Kahn-designed building on East Grand Boulevard in Detroit, Michigan. The proceedings marked the latest salvo in the mural wars under the United States’ Visual Artists Rights Act (VARA). Publicly displayed murals and sculptures have been at the center of VARA controversies in the past decade in large part because of the passionate responses they inspire from the viewing communities. 

Craig’s 100-by-125-foot mural, described as a “flowing watercolor of multicolored paint splatters,” is a notable landmark in Detroit. Despite the artist’s agreement with the original owner of the property that the work—which covers almost an entire side of the building—would remain in place for at least 10 years, and despite the protection ostensibly provided by VARA, the work is in real danger of being destroyed by the current owner, Princeton Enterprises, LLC. In her complaint, Craig claims that Princeton Enterprises has threatened to destroy or mutilate the mural by punching windows through the composition, as part of its plans to redevelop the property. Princeton denies this claim. 

While their European counterparts provide expansive protections, moral rights laws in the United States are narrow, restrictive and weak—constrained by a copyright system that profoundly respects traditional property rights. In the US, VARA provides only rights of attribution and integrity, and while inalienable, those rights can be waived. VARA is also relatively new, enacted by the US Congress in 1990.

Twenty-five years later, very few successful VARA claims exist. The lack of a robust body of VARA law is due in part to the law itself.  It is restricted to visual arts, narrowly defined as “a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” While VARA does not specifically cover murals, it notes that a visual artwork may be “incorporated in or made part of a building.” Photographs are protected if they were produced for exhibition purposes only; this excludes a majority of photographic work that exists in more than one sphere. And to make matters more difficult, works falling into the above categories receive protection only if they are of “recognized stature.”

While the current law does not define “recognized stature,” earlier versions of VARA suggest that courts may take into account “the opinions of artists, art dealers, collectors of fine art, curators of art museums, conservators” and art critics and historians. This rarified notion of stature has proven problematic for contemporary, 21st-century countercultural or street artists.  The court in Carter v. Helmsley-Spear, Inc. of the mid-1990s established a two-part standard: “(1) that the visual art in question has ‘stature’ i.e., is viewed as meritorious and (2) that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.” The problem with this standard is that much of street or countercultural art is not recognized at the time it is created. For example, Banksy, one of the most famous and commercially successful street artists today, probably would not have qualified as a person of “recognized stature” under VARA early in his career.

Even though Craig is a well-regarded artist with a list of significant accomplishments, she has the burden of proving “recognized stature”—a subjective standard. In a January 2016 interview posted on Hyperallergic.com, she is quoted as saying, “I was young, 25, when I painted this work, and it was a major turning point in my career . . . I’ve capitalized on the mural’s existence . . . As a direct result of the mural’s reputation, I’m currently included in a new CPAD (community+public arts: Detroit) roster, which other neighborhoods can use when choosing artists for future projects.” She is seeking an injunction barring the defendant from taking any action to destroy or modify her work, which she credits with enhancing her career.

The strategy was not successful in another recent mural case in New York involving 5Pointz, a set of buildings that occupied an entire block housing various commercial businesses in the neighborhood of Queens. Fittingly, it was located across the street from MoMA PS1, a champion of cutting-edge contemporary art.  To counter vandalism in the form of unwanted graffiti, in 2001 American graffiti artist Jonathan Cohen approached 5Pointz’s owner Jerry Wolkoff and offered to curate “aerosol artwork” on the building. Soon the site evolved into a “mecca for high-end works by internationally recognized aerosol artists,” such as Stay High 149, Tracy 168, Tats Cru and Lady Pink, whose work has been collected by the Whitney Museum of American Art, the Metropolitan Museum of Art and the Brooklyn Museum. It became an epicenter for art tours and was recognized as an art destination in 150 different tour guidebooks for New York.

In 2013, Wolkoff announced plans to destroy 5Pointz to build high-rise luxury condos. The artists first tried to preserve the site by having the building deemed a landmark. When that failed, they then filed suit in the US District Court for the Eastern District of New York seeking declaratory and injunctive relief on the basis that destroying the murals without their consent violated VARA. The judge denied their motion because he noted there were triable issues as to “recognized stature” not appropriate for a preliminary injunction. He also noted that there was no irreparable harm because monetary damages could compensate the artists, noting that they had originally painted the work for free. Seven days after the injunction was denied, Wolkoff ordered the whitewashing of the building’s facade, destroying all the artworks. The ruling has been criticized for failing to differentiate between the noneconomic moral rights that are fundamentally different from the economic rights provided by federal copyright law. As the court in Carter stated, “Moral rights are not economic in nature and irreparable harm should be presumed on showing of violation.”

Monetary damages alone cannot compensate the harm to an artist’s reputation. This issue remains at the heart of the case of Katherine Craig, who, incidentally, was also offered a “token sum” in exchange for the legal rights to her work.