Tuesday, April 16, 2024

Judge Opines on 5Pointz; Will We Have a Circuit Split?

Diego Rivera

Donn Zaretsky goes through the judges opinion on the 5Pointz ‘graffiti mecca’ conflict.

Here are my (very quick) thoughts.

On the question of whether graffiti art — given its ephemeral nature — is worthy of any protection under the law, the district court basically says yes because the Visual Artists Rights Act (“VARA”) “makes no distinction between temporary and permanent works of visual art” and thus it “protects even temporary works from destruction[.]” But how temporary?

The question of temporary vs. permanent was also addressed by the 7th Circuit when it ruled that Chapman Kelley’s Wildflower Works was not sufficiently fixed to receive copyright protection. As a work not subject to copyright, Wildflower Works was not covered by VARA’s grant of moral rights.

Although it seems that the 7th Circuit narrowed its ruling to “gardens” or “garden-style” artworks, it did address the lack of permanence in Kelley’s sculptural installation,

[A] garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. [bolding added]

If this case does find its way to the 2nd Circuit and the Court upholds Judge Block, we would have a lingering question as to what constitutes “fixed” under copyright law when it comes to transitory and changeable contemporary works of art. What do we do if a wildflower installation is not manipulated by an artist for a year and yet a graffiti painting is changed four times in one day? The 2nd Circuit would be saying that the graffiti painting would get protection and yet the 7th Circuit would say the wildflower installation would not. Huh?One other nugget from Judge Block’s opinion worth noting. Block opines,

[P]aintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace.

I have to think about this, but is it me or does it seem like judges are increasingly thinking of art’s value solely in financial terms. I wonder what this kind of argument would mean for other art cases such as Cariou v. Prince, if the argument were made that Prince was making paintings solely for their financial worth. This argument could have effect in both the fair use assessment stage as well as the damages stage. On the other hand, speaking from an art historical perspective, I have to wonder what Picasso and Diego Rivera would say about Judge Block’s musing in regard to their Guernica and the Detroit Industry murals.


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  • theresaphan

    Were the grafitti “artists” trespassing when doing their work? That fact would surely trump any discussion of whether their handiwork could be afforded any protection.

  • They weren’t trespassing. I believe they were given permission by the property owners and even encouraged to paint on the buildings (and I believe they were also provided with painting materials). So, no trespass here, but the permission granted seems to have been provisional and conditional, so I don’t think the graf artists really have much ground to stand on. Otherwise,can you imagine what this would do to property owner rights, not to mention de-incentivize property owners to allow graf artists to create on their property?

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