October 14, 2018

Beauty is in the Eye of the Beholder, not the Fee Holder

By Bryan K. Wheelock, Principal

A federal judge in New York awarded 21 graffiti artists a total of $6.7 million after a jury had found that a developer violated their Visual Artists Rights Act (VARA) rights by destroying dozens of their murals at the 5Pointz complex when the owner demolished the buildings for redevelopment in 2014. Other property holders may still need schooling on the Visual Artists Rights Act, which gives artists rights that can interfere with the property owner’s right to use its land as it sees fee.

The most recent lesson is being given by Kyle Holbrook, an artist is suing the City of Pittsburgh, its housing authority, the Urban Redevelopment Authority, the Port Authority of Allegheny County, and numerous landowners and developers over the destruction of his murals which are often part of redevelopment projects.

This article shows some of the murals that were destroyed, and the redevelopment projects that the destruction permitted:

The problem is not the protection of artists, but the consequences of that protection — of which many property owners seem to be unaware. The critical thing for property owners to remember is that VARA rights under 17 USC 106A can be waived:

The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.

Takeaway:

Before allowing original art to be installed on one’s property, the property owner should consider obtaining such a waiver. Otherwise, future use and development of the property may be impaired.