Graffiti: Legal or Illegal?

 

In the rapidly changing world of Intellectual Property Law, street art protection is less commonly discussed than that of other innovative creations.  Street art is somewhat ambiguous in its meaning.  It is common to associate street art with the graffiti spray-painted tags on a building or subway.  However, actual street art is something created with more depth.  Legally, the distinction between permanent graffiti and art is permission.  Street art becomes vandalism when that permission to publicly paint is not granted.

Because of the complexity of public art, the amount of protection warranted to street art is unclear.  Graffiti law is not yet a legal practice; however, graffiti-related disputes have been stirring across the country.

In a case close to home, 5Pointz graffiti curators have been wrestling with building owners over their famous murals being torn down without notice in Long Island City, New York.

5Pointz, the outdoor art exhibition once praised as an international “graffiti mecca,” is undergoing construction as it transforms into two residential high-rises with luxury apartments.

Strikingly, the apartments will keep the 5Pointz name.  The newly constructed buildings will showcase street art-style decorations in memory of the destroyed exhibit, much to the dismay of original 5Pointz artists.  The building may even display replicas of 5Pointz if the artists grant permission.  That may be unlikely, though, considering their adversarial stance against the building owners.

The legacy of 5Pointz began with curator Jonathan Cohen in the early 1990s.

Nearly three decades ago, the site was merely made up of unused artist studios.  So, Cohen asked the building’s owners, Jerry and David Wilkoff, for permission to paint on the walls of the buildings.

After agreeing to the artist’s use, Cohen went to work and, over time, local and international artists joined him, turning the buildings into the colorful outdoor art exhibit it came to be known as over time.

The building owners were issued a permit on August 21, 2013 by the City Planning Commission to convert the 5Pointz buildings into high rise apartments.  On October 10, 2013, Cohen and other aerosol artists sued the owners of the buildings that housed 5Pointz to prevent their works’ destruction, asserting VARA (Visual Artists Rights Act) and common law tort claims in the Eastern District Court of New York.  In the case of Cohen, et al. v. G&M Realty, L.P., the court denied the artists’ request for injunctive relief.

Despite the suit, the 5Pointz artwork were quickly whitewashed in one night, erasing all artwork to allegedly prevent the property from being able to claim landmark status.  The artists accused the owners of deliberately whitewashing the art so rapidly in an attempt to sabotage their plan to get the building landmarked because they had already prepared over 20,000 landmark forms for submission to the Landmarks Commission that were collected during a rally several days before the destruction.  The stigma behind graffiti being an act of vandalism is blurred when building owners consent to having street art on their property, and then forcefully remove it without giving the artists an opportunity to preserve their work.

Twenty-three artists had accused Jerry Wilkoff of removing the murals without giving the artists a fair opportunity to remove and preserve their work, or even the minimum notice required by law.

In March 31, 2017, Senior District Judge Frederic Block ruled against the real estate Attorney developers, who made a motion to dismiss the artists’ third and final complaint.  Judge Bloc stated that: “For VARA, the plaintiffs would have no right to prevent 5Pointz’s destruction by its rightful and legal owner; hence, the plaintiffs’ “moral rights” to prevent another’s disposition of his property arise purely under VARA.  Because the plaintiffs’ conversion and property damage claims wholly depend on the viability of their VARA claim, the Court finds them to be fully preempted.”

This significant legal victory for the artists is meaningful for the entire art community because the judge is allowing the case to go in front of a jury who may be more sympathetic to the wronged artists than to the real estate owners and developers.

Cohen and his fellow artists asserted that their street art is protected under VARA, a federal act that grants visual artists limited rights over visual works of art they created but do not own, and thus they are entitled to monetary damages for the destruction of their visual works of art.

VARA offers limited protections to only visual works of art.  A “work of visual art” is:

Resource By : https://sewellnylaw.com/graffiti-legal-illegal

 

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Mr. Sewell continuously distinguishes himself as a top litigation attorney. He has twice been selected by New York Super Lawyers as a "Rising Star". Additionally, he is recognized as "Superb" and a "Top Litigation Attorney" by the lawyer-rating service Avvo. Moreover, he has been prominently featured as a preeminent legal authority on CNN. Attorney Sewell has several years of transactional experience as well as significant, state and federal litigation practice. Moreover, he is well-versed in prosecution matters before the United States Patent & Trademark Office and the United States Copyright Office. He has represented the spectrum of patent, trademark, and copyright owners, food and drug companies, business owners, non-institutional clients, and more. While at a top 100 law firm, Mr. Sewell's foci were in the areas of litigation and intellectual property. Prior to large firm practice, he honed his skills in Manhattan at a litigation boutique that specialized in intellectual property, food & drug law, and litigation. Mr. Sewell is also an alumnus of the distinguished Innocence Project at the Benjamin N. Cardozo School of Law. He drafted motions and briefs regarding reopening criminal cases and reversing convictions using DNA evidence. Ultimately, his efforts culminated in the exoneration of one of his clients. Dayrel also completed a legal internship at Bristol-Myers Squibb Company. While at Bristol-Myers, he gained patent litigation and prosecution experience through the Court of Appeals for the Federal Circuit litigation and training seminars, respectively. He also worked on several regulatory matters including corporate consultant agreements, conflicts of interest, clinical trials, and co-marketed pharmaceutical contracts. To continuously expand his expertise, Attorney Sewell has several years of experience providing counsel and litigation representation to real estate entities and individuals. Mr. Sewell recognizes the systemic real estate crisis and its affects on both investors and individuals, and is well-prepared to continue to assist clients with the crisis' persistent havoc that affects the millions of people involved. Prior to law school - with academic, medical background, and practicum requirements being met - Mr. Sewell received his M.P.H. from Columbia University and was a Director for medical research studies in New York City. Dayrel received his B.A. from The Johns Hopkins University, majoring in both Natural Sciences and Public Health. Mr. Sewell has also found time to do pro bono work. Of note, Dayrel is proficient in Spanish. Some examples of Attorney Sewell's work include: Litigation involving contracts, patents, real estate, securities, foreclosures, trademarks, copyrights, licenses, LLCs, and torts Negotiating/authoring business contracts and settlement agreements issuing patent and trademark opinions drafting and registering patents, trademarks, and copyrights counseling clients regarding food & drug product registration, compliance, and other regulatory matters advising startup companies and creating their business entity structure real estate transactions (i.e., conveyances, leases, title searches, deeds, assignments, recordings, etc.) Bar admissions United States Supreme Court New York District of Columbia United States Patent Bar United States Court of Appeals for the Second Circuit United States Court of Appeals for the Federal Circuit United States District Court for the Southern District of New York United States District Court for the Eastern District of New York Degrees J.D., Benjamin N. Cardozo School of Law M.P.H., Columbia University B.A., The Johns Hopkins University Awards & Distinctions Two-time Super Lawyers NYC Metro Rising Star Who's Who in American Law Notes Editor, Cardozo Journal of Law & Gender Alumnus, The Innocence Project, Benjamin N. Cardozo School of Law NIEHS Community & Preventive Medicine Fellow, Mount Sinai School of Medicine Recipient, Phoenix Fellowship, Columbia University Alumnus, Council on Legal Education Opportunity Winner, Black Bar Association of Bronx County Writing Competition Federal Acquisition Regulations Certificate HIPAA Research Compliance Certificate Publications Dayrel S. Sewell, Amulya Appalaraju, The Duality of the U.S. Supreme Court's Janus Decision, American Bar Association, Securities Litigation, 2015 Fall Newsletter. Dayrel S. Sewell, Andrew Fine, The "Redskins" Trademark: Turn-over on Downs, IPFrontline, October 2015. Dayrel S. Sewell, Ivan Ng, Pharrell Williams and Robin Thicke told they "Got To Give It Up", IPFrontline, May 2015. Dayrel S. Sewell, Ivan Ng, A ?Generic' Victory for Specific Fact-Findings, Intellectual Property Today, March 2015, at 34. Dayrel S. Sewell, Ivan Ng, A ?Generic' Victory for Specific Fact-Findings, IPFrontline, February 2015. Dayrel S. Sewell, Myriad Back in Court on Patent Subject Matter Eligibility, The Brooklyn Barrister, January/February 2015, at 9. Dayrel S. Sewell, The Ignominious Patent Troll, The Brooklyn Barrister, November 2013, at 5. Dayrel S. Sewell, The Ignominious Patent Troll, Intellectual Property Today, November 2013, at 12. Dayrel S. Sewell, Unanimous U.S. Supreme Court and Angelina Jolie: BRCA1 & BRCA2 Patentability, Intellectual Property Today, July 2013, at 24. Dayrel S. Sewell, Marc S. Ullman, The Regulation of Advertising for Dietary Supplements in the United States, KENKO SANGYO RYUTSU SHIMBUN (Health Trade Newspaper), April 8, 2007, at Issue 661. Tam T. Nguyen, Dayrel S. Sewell and Adrian S. Dobs. Oral Methyltestosterone Given to Post-menopausal Women Decreases Adipose Tissue and Increases Lean Muscle Mass with No Change in Muscle Strength. ENDO 2000 Abstracts. Category: Clinical Science: Aging. Medicine, Johns Hopkins University (2000). Speaking Engagements Dayrel S. Sewell, Brooklyn Bar Association Continuing Legal Education Speaker, Intellectual Property Fundamentals: What Every Attorney Needs to Know, May 2014. Dayrel S. Sewell, Legal Analyst (en espa?ol ), CNN "Realidades En Contexto": Nueva Jersey Agentes Inmobiliarios haber supuestamente Relaciones repetidas Dentro de una casa en venta, March 2014. Dayrel S. Sewell, Panelist, Managing Career Changes in a Changing Global Market, Union League Club, November 2013. Dayrel S. Sewell, Presenter, Professional Development, Bristol-Myers Squibb Legal Department Conference, June 2009. Other Licenses New York State Real Estate Broker New York State Notary Public Organizations Brooklyn Bar Association Vice-Chair, Intellectual Property Committee Vice-Chair, Real Property Committee New York County Lawyers' Association The Johns Hopkins University Law Affinity Committee
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