Although graffiti often has a negative connotation – associated with gang-related origins and vandalism – in some cases it’s viewed as legitimate art created by street artists or graffiti artists with local or even national reputations.
Graffiti vandalism is a criminal act done without the building owner’s permission. But urban forms of graffiti art, also known as street art or as seen in murals on the sides of city buildings, are legal. The property owner has granted those artists permission. And while graffiti costs cities millions of dollars to clean up, another type of financial battle can occur regarding the rights of street artists vs. property owners. A landmark example came in a February court decision in New York City, resulting in the awarding of $6.7 million to graffiti artists who sued building owner Gerald Wolkoff.
“The message to property owners everywhere was, don’t paint with a broad brush when it comes to dealing with street artists,” says Timothy Kephart, founder of Graffiti Tracker, a web-based system designed to help identify and prosecute graffiti vandals.
“Know the details if you have a property already affixed with street art and assume you have control of the situation. There are many implications, and a little-known law could cost you millions.”
Kephart refers to the Visual Artist Rights Act (VARA), which graffiti artists used to their advantage against Wolkoff. Wolkoff had allowed graffiti on his unused buildings in the 1990s but said he would one day tear them down and have the graffiti removed. After he did so in 2013, some people who had drawn graffiti on his property sued, citing VARA, arguing the murals had risen to recognized stature and that the artists hadn’t been given proper notification of removal.
“It opens up a whole litany of questions,” Kephart says. “Most importantly, is your property no longer your property to do with what you wish because people put graffiti on it?”
Kephart has four points for property owners to keep in mind regarding ownership and removal of graffiti art on their buildings:
• Know if it’s legal or illegal street art. When acquiring, renovating or destroying property containing street art, Kephart says you should assess whether it’s “recognized stature,” thus making it protected by copyright law. “Though graffiti is often illegal, murals or other forms of street art may have been affixed with a previous owner’s permission,” Kephart says. “Also, it could have been placed illegally, but since has risen to recognized stature.”
• Be aware of VARA-related issues. “If granting an artist permission to attach art to your property, you need a written agreement stipulating the artist waives their VARA rights,” Kephart says. “If acquiring a property with visual art that could be protected, you need to be well-versed in VARA.”
• Court may be the only resort. If a street artist paints a building wall without permission, they still have VARA rights and the copyright. “However, the physical part of the building where the art was displayed remains the property of the building owner,” Kephart says. “Whether the owner has the right to remove and sell the work can require litigation.”
• Separate new work from collective work. “It’s important to get a written agreement from an artist if the owner has commissioned the artist for a new work that’s part of a collective work,” Kephart says. “That separate work should be designated “work for hire,” which can eliminate a future VARA claim.”
“I’ve long held the belief that the difference between graffiti vandalism and graffiti art simply comes down to permission,” Kephart says. “But sometimes in terms of ownership and rights, it’s not that simple.”