New York Judge Rules Graffiti Is Protected Public Art

Landmark judgement results in $6.7 million in damages awarded to 21 graffiti artists for destroyed murals.

The Visual Artists Rights Act was created as an extension of the 1976 Copyright Act in 1990 in order to protect artists from the intentional distortion, mutilation or other modification of their work (regardless of any subsequent physical ownership of the work itself). In 1999 when sculptor Jan Martin was the first successful plaintiff in a VARA lawsuit, winning a $150,000 judgement against the City of Indianapolis for bulldozing Martin’s sculptures. There have been other notable cases involving the VARA since Martin’s victory.

Boston sculptor David Phillips lost a VARA lawsuit against the private owner of a city park. Phillips was paid $575,000 by Fidelity Investments (via Pembroke Real Estate) to design a sculpture park outside the offices of the company’s building. The installation included the addition of stones, paved pathways, sculptors and benches along a 1-acre public park (paid for and maintained by Fidelity) called Eastport Park. Eventually, Fidelity wanted to make alterations to the landscaping of the park and include more public walkways, which required the rearrangement of 27 of Phillips’ sculptures.

Initially, the district court found that the location of the sculptures along the park’s axis was a critical element of Phillips’s work. He was awarded $1.1 million, but subsequent appeals in 2004 and 2006 ultimately reversed the district court’s decision. In the 2006 case the court determined that “VARA does not apply to site-specific art at all,” even though it recognized that changing the arrangement of David Phillips’s sculpture in Eastport Park in South Boston effectively destroyed the work. If site-specific art comes under the VARA umbrella, the court wrote, the work couldn’t be altered without the artist’s consent and that “could dramatically affect real property interests and laws.”

Image: Chapman Kelley

Sculptor Chapman Kelley sought a VARA lawsuit against the Chicago Park District. Kelley had self-funded and curated an (unauthorized) 68,000 square foot wildflower arrangement titled “Wildflower Works” in Grant Park in 1984. In 2004, the city created a new bridge in the adjacent Millennium Park that impacted Kelley’s wildflower installation. Kelly won in district court but lost several appellate decisions over the span of 7 years. VARA has a narrow definition of protected art—paintings, drawings, prints, photographs or sculptures in a single copy or limited edition of 200 copies or fewer (that are signed and consecutively numbered). The appellate rulings would not recognize that floral arrangements were protected sculptures, finally determining in 2011 that “[G]ardens are planted and cultivated, not authored.”

In 2008, Kent Twitchell successfully sued the federal government and the YWCA of Greater Los Angeles for whitewashing a 70-foot tall mural titled “Ed Ruscha Monument” erected in 1987. Ruscha was an artist, most commonly credited with the West Coast Pop Art movement, and Twitchell immortalized Ruscha by painting his likeness on side of a building at 1031 S. Hill St and adding life to what was a long-forgotten side of dowtown Los Angeles. In 2006, the mural was accidently covered over. The building was being used at that time as a US Dept of Labor Job Corps training center for young adults, and contracted to run by the YWCA.


The lawsuit sought to recover damages under both the VARA and the California Art Perservation Act (CAPA)- a state statue passed in 1979, the first major law in the United States to specifically address artists’ rights. Twitchell eventually settled the lawsuit and was paid $1.1 million in damages to drop any future legal actions. Because the case was settled out of court, an appellate court would not have the opportunity to reverse Twitchell’s payment. Until the 5Pointz ruling earlier this month, Twitchell’s cash sum was considered to be the largest damage paid under the VARA umbrella. It is in fact rare that a VARA case actually make it to court, as most are dismissed or settled beforehand.

The 5Pointz case will undoubtedly be heard again on appeal. Many of the initially successful VARA lawsuits have died on the vine through the appeals process, where technical applications of the law are ruled upon rather than findings of fact. In this case, the street art community still has a long road ahead towards gaining official recognition that street art is of sufficient stature to afford protection under the VARA.

Private property rights groups are also keenly interested in the outcome of the appeals process. Think about a developer who has paid to have a mural erected on their apartment building. This ruling, if affirmed on appeal, will likely have the development community re-thinking their approach to including public art on their projects. At the very least, many will likely opt to include a VARA waiver along with any signed artist contract.

Is street art in fact, art? The appellate courts of the State of New York will soon have the opportunity to unequivocally answer that question.

Cover Image: FLICKR / mattharvey1