‘Graffiti Mecca’ Will Likely Be Destroyed, But Is There Even VARA Protection?

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“The building, unfortunately, is going to have to come down,” federal judge Frederic Block said in New York’s eastern district court on Friday.

The 5Pointz artists face an uphill battle, a few of which, for me, center around the question of whether or not the “graffiti” works are protected by the 1990 Visual Artists Rights Act.

For one, I wonder if, after the 7th Circuit’s Kelley v. Chicago Park District opinion, the “works” at the graffiti mecca are protected by copyright — specifically in relation to the question of fixation. To my understanding a main premise of the graffiti mecca was the impermanence of the works and the collaborative aspect of the entire work, premised on the idea that artists would build upon the previous existing works of other artists. I’m not saying that the 7th Circuit opinion is correct as to its rationale on fixation and authorship, but it could be persuasive to a district court judge, and certainly to an appellate judge.

Connected to the question of copyright is, and assuming fixation, authorship and originality, whether some of the works fall under the unprotected category of Copyright Law. Words and fonts are not protected under copyright, so is the minimal added element of paint enough to get some of these works copyright protection as paintings and not words and fonts, and how thin would that protection be?

Secondly, there’s a question as to whether there is a work or multiple works, which could raise the question of whether one artist could make a VARA claim for the entire graffiti work, or whether each artist would have to bring a VARA claim.

The third problem I see is the one of “recognized stature,” especially if read in conjunction with the issue of single or multiple authors. Is every graffiti mark on the 5Pointz building of recognized stature? This is a tough sell.

Pragmatically speaking, I’d like to see the art remain in some format, one of which could be the purchasing of the architectural structure and moving it to another location. Financial and physical feasibility? Probably quite daunting, but it is an option. Philosophically speaking, and as many of my readers know, I’m not so sure that the erasure of art is necessarily that bad.

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