Additionally, VARA only protects “recognized stature.” The statute doesn’t define works of “recognized stature.” Carter v. Helmsley-Spear, Inc., 94 Civ. 2922 (DNE), 1995 U.S. Dist. LEXIS 7779 (S.D.N.Y. 1995) remains the seminal case for interpreting the phrase "recognized stature.” Carter created a two-prong test to determine “recognized stature.” First, the visual art has “stature” (i.e. is viewed as meritorious). Second, the visual art is “recognized” by art experts. Carter requires the visual art to achieve some notoriety, but how much notoriety is required is still unclear.
How Does VARA Work?
VARA does not completely prevent the destruction, mutilation or otherwise modification of protected works. VARA requires 90 days’ notice to the creator before the destruction, mutilation or otherwise modification of their work. There must be a good faith effort made to notify the creator. Sending notice to a creator’s last known address is sufficient. Notice is required so the creator has time to remove their work, if possible. 17 U.S.C. § 113. In the case of 5Pointz, it’s unclear to me how the graffiti could have been removed in such a way as to preserve the graffiti without actually removing chunks of the exterior façade.
An award of damages for a violation under VARA can be no less than $750 and no more than $30,000 for each work destroyed. If there is a willful violation, damages can be up to $150,000 for each work destroyed.
The Lesson From 5Pointz
5Pointz puts VARA into focus. It serves as a reminder that violating VARA has real consequences. Wolkoff could have potentially avoided a lawsuit by giving the artists notice of his plans to destroy their works. One question I have is whether or not Wolkoff could have located an address to properly notify all or most of the artists.
If you’re a creator of a VARA protected work, know your rights. Be aware that notice is required for the destruction, mutilation or modification of your work. On the other hand, if you own property that incorporates VARA protected work, know your obligations and follow the notice procedures.
Listen to entertainment lawyers Tamera Bennett and Gordon Firemark discuss the 5Pointz case on the Entertainment Law Update Podcast Episode 94.
Read the court opinion here. Cohen v. G&M REALTY LP, Dist. Court, ED New York 2018.
Update - Recent VARA Case Filings:
As of April 25, 2018, new lawsuits have been filed in Memphis and Pittsburgh over the destruction of graffiti/murals in public spaces.