Author: David

Or, Can I post a photo of graffiti art to Instagram?

Imagine this scenario: while traversing the city on your daily walk to the office you see some interesting graffiti on the inside of a stairwell in the commercial building housing your favorite independent coffee shop. It’s clearly layers upon layers of works by who-knows-how-many artists. Next to the stairwell is a sign, with icon of a camera, and hashtag. Feeling inspired and intrepid you snap a photo, instantly uploading it to your story with a witty one-liner about undiscovered urban art.

As the caffeine works its magic you begin to recall hearing about a case where some graffiti artists won a multi-million dollar damage award when someone destroyed their graffiti. That case, known as “the 5Pointz case,” involved a building in New York displaying forty four works of graffiti by twenty one artists, for over two decades. The artists prevented the building’s destruction, but not the ownwer whitewashed the building (thus destroying the graffiti). Cohen v. G&M Realty L.P. 13-CV-05612(FB)(RLM) (E.D.N.Y. Jun. 13, 2018)

Come to think of it you, you may also recall a California case holding VARA did not apply to graffiti comprised of large scale murals on the exterior of San Francisco’s oldest continuously operating queer bar, The Stud. Shortly after the bar closed, the building owners began whitewashing and erasing the Artists’ Murals.

This is almost exactly the same fact pattern as the 5Pointz case. However, in 5Pointz the building owner consented to the artwork installation. Even though “consent of the owner” is not mentioned in the text of the VARA, reads it as a necessary element for a VARA claim based upon placement on a building to proceed. “VARA implies a requirement that an artist obtain the consent of a building owner.” Canilao v. City Commercial Invs., 20-cv-08030-EMC (N.D. Cal. Oct 18, 2022).

So if graffiti can be protected, does one need permission from the artist to photograph the work and then “publish” it to a social media platform? What if the social media account is used to promote the account owner’s own goods or services, or a third party’s brand? As many readers know, U.S. Copyright Law grants the author the exclusive rights to exploit the work, subject to certain fair use defenses.

Whether taking and publishing photos of graffiti violates the Visual Artists Rights Act (VARA) can depend on various factors, including the specific circumstances and location of the graffiti. VARA grants certain rights to visual artists, including the right to prevent the destruction, distortion, or mutilation of their work. However, graffiti may not always be protected under VARA, especially if it was created illegally or without the property owner’s permission. In such cases, the property owner’s rights may take precedence. Laws can also vary by jurisdiction.

So What Rights Are Granted To Artists By The Visual Artists Rights Act?

VARA is part of U.S. copyright law, specifically codified in Title 17 of the United States Code, Sections 106A and 113. Section 106A of the U.S. Copyright Act is the primary section that grants rights to visual artists. This includes various provisions that protect the moral rights of authors of certain works of visual art, including the rights to:

1. Attribution: The right to have their name associated with the work.
2. Integrity: The right to prevent intentional distortion, mutilation, or other modification of the work that would be prejudicial to the artist’s reputation.

Section 113 of the U.S. Copyright Act contains provisions related to VARA, including remedies and limitations.

It’s important to note that VARA provides protection for a specific category of visual art, such as paintings, sculptures, drawings, and certain types of photographs, but not all visual art is covered. Additionally, VARA has limitations and exceptions, and the application of VARA can vary depending on the specific circumstances and the interpretation of the law by the courts. Therefore, consulting with a legal professional for specific legal advice is recommended when dealing with VARA-related issues

VARA gives the artist the right (a) to claim or to disclaim authorship of the work, (b) to prevent intentional distortion, modification or mutilation of the work if it would be prejudicial to his or her honor or reputation, or (c) to prevent destruction of the work if it is of “recognized stature.”

These rights are not transferable by the artist, who has these rights for life (or longer for works created before December 1, 1990), even after he or she has transferred ownership of the physical work or of the copyright in the work. But the artist can waive these rights in writing.

There are some exceptions to the application of VARA, including as to works made for hire, works subject to the natural aging of materials, and the fair use of works.

Most importantly, special rules apply to works that are part of a building. VARA does not apply if the artist consented to the installation before December 1, 1990, or after that date, executed a written agreement specifying that the work might be damaged by removal. Otherwise, if the building owner wants to remove a work which can be safely removed, the building owner may do so either (1) if the building owner made a diligent, good faith effort to notify the artist, or (2) if notified, the artist has failed to remove or pay for removal of the work within 90 days.

If you have questions about using public art to promote your business or on your company’s social media account, each use case must be evaluated on its own merits. Consulting with an experienced attorney is highly recommended. If you have questions about the requirements, the process the costs or any other question about these issues please contact us to discuss the scope of your project and how we’ve helped others like you.