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2nd Circuit Upholds VARA, and 5Pointz Decision

A Stunning Legal Decision Just Upheld a $6.75 Million Victory for the Street Artists Whose Works Were Destroyed at the 5Pointz Graffiti Mecca

The ruling shuts down the defendant's claims on practically every count.

Eileen Kinsella, February 20, 2020
Artnet.com article here

In a sweeping 32-page decision eviscerating the legal arguments of a disgruntled Queens real estate developer, a US Appeals Court affirmed the rights and monetary damages awarded to a group of graffiti artists whose works were destroyed without warning or consent in 2013.

The artists sued the developer, Gerald Wolkoff, in 2013 for violating their rights after he whitewashed their work at the famous 5Pointz graffiti art mecca in New York to make way for condos. A jury ruled in favor of the artists in November 2017, but it was up to a judge to determine the extent of the damages.

In February 2018, Brooklyn Supreme Court judge Frederick Block awarded the artists a total $6.75 million in a landmark decision. The sum included $150,000—the maximum legal penalty—for each of the 45 destroyed works at the center of the case.

The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain “moral rights” for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.

But the act, which was added to copyright laws in 1990, disallows the modification of works in ways that could be considered harmful to artists’ reputations, and grants protections to artworks deemed to be of “recognized stature.”

In his appeal, Wolkoff challenged practically every aspect of the decision by Judge Block, from the amount of the award, to the suggestion that the graffiti murals at 5Pointz merited protection under the “recognized stature” clause.

But Wolkoff was rebuffed on all points in the latest ruling, and the court took the additionally extraordinary step of citing his own lawyers against him. “Wolkoff’s own expert acknowledged that temporary artwork can achieve recognized stature,” according to the decision.

Know Your Spray Paint - Molotow Belton MSDS Excerpts

MSDS [Material Safety Data Sheet] for #01463 - MOLOTW BELTON SPRAYS
Molotow Paints [Note: Could not find MSDS on company's website.]
Link to complete 2017 MSDS Sheet

1.2 Relevant identified uses of the substance or mixture and uses advised against

  • Application of the substance / the mixture: painting
  • Uses advised against No further relevant information available.

2.1 Classification of the substance or mixture
Classification according to Regulation (EC) No 1272/2008

  • GHS02 flame: Aerosol 1 H222-H229 Extremely flammable aerosol. Pressurised container: May burst if heated.
  • GHS07 Eye Irrit. 2 H319 Causes serious eye irritation.: STOT SE 3 H336 May cause drowsiness or dizziness.

Hazard statements

  • H222-H229 Extremely flammable aerosol. Pressurised container: May burst if heated.
  • H319 Causes serious eye irritation.
  • H336 May cause drowsiness or dizziness.

Precautionary statements

  • P101 If medical advice is needed, have product container or label at hand.
  • P102 Keep out of reach of children.
  • P103 Read label before use.
  • P210 Keep away from heat, hot surfaces, sparks, open flames and other ignition sources. No smoking.
  • P211 Do not spray on an open flame or other ignition source.
  • P251 Do not pierce or burn, even after use.
  • P261 Avoid breathing vapours/spray.
  • P271 Use only outdoors or in a well-ventilated area.
  • P305+P351+P338 IF IN EYES: Rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing.
  • P312 Call a POISON CENTER/doctor if you feel unwell.
  • P337+P313 If eye irritation persists: Get medical advice/attention.
  • P410+P412 Protect from sunlight. Do not expose to temperatures exceeding 50 °C/122 °F.
  • P501 Dispose of contents/container in accordance with local/regional/national/international regulations.

Additional information:
Without adequate ventilation, explosive atmosphere/gas mix may be created.
Contains CAS 222716-38-3 Polyamide and fatty acid derivatives. May produce an allergic reaction.

SECTION 3: Composition/information on ingredients
3.2 Chemical characterisation: Mixtures
Description: Mixture of substances listed below with nonhazardous additions.

Dangerous components:

  • CAS: 67-64-1: acetone: Flam. Liq. 2, H225; Eye Irrit. 2, H319; STOT SE 3, H336: 25-<50%
  • CAS: 74-98-6: propane: Flam. Gas 1, H220; Press. Gas C, H280: 10-<25%
  • CAS: 106-97-8: butane (containing ≤ 0,1 % butadiene (203-450-8)): Flam. Gas 1, H220; Press. Gas C, H280: 5-<10%
  • CAS: 108-65-6: 2-methoxy-1-methylethyl acetate: Flam. Liq. 3, H226: 5-<10%
  • CAS: 123-86-4: n-butyl acetate: Flam. Liq. 3, H226; STOT SE 3, H336: 5-<10%
  • CAS: 75-28-5: isobutane (containing ≤ 0,1 % butadiene (203-450-8): Flam. Gas 1, H220; Press. Gas C, H280: 5-<10%
  • CAS: 9004-70-0 nitrocellulose with water (not less than 25% water, by mass): Unst. Expl., H200: 2.5-<5%
  • CAS: 1330-20-7: xylene: Flam. Liq. 3, H226; Acute Tox. 4, H312; Acute Tox. 4,: H332; Skin Irrit. 2, H315: 2.5-<5%
  • CAS: 64-17-5: ethanol: Flam. Liq. 2, H225; Eye Irrit. 2, H319: 1-<2.5%
  • CAS: 7397-62-8: butyl glycollate: Repr. 2, H361; Eye Dam. 1, H318: <1%
  • CAS: 222716-38-3 CAS 222716-38-3 Polyamide and fatty acid derivatives: STOT RE 2, H373; Aquatic Acute 1, H400; Aquatic
  • Chronic 1, H410; Acute Tox. 4, H302; Skin Irrit. 2, H315;: Skin Sens. 1, H317: <1%

4.1 Description of first aid measures
After inhalation: Supply fresh air; consult doctor in case of complaints.
After skin contact: Immediately wash with water and soap and rinse thoroughly.
After eye contact: Rinse opened eye for several minutes under running water. If symptoms persist, consult a doctor.
After swallowing: If symptoms persist consult doctor.

SECTION 16: Other information
This information is based on our present knowledge. However, this shall not constitute a guarantee for any specific product features and shall not establish a legally valid contractual relationship.
Relevant phrases

  • H200 Unstable explosives.
  • H220 Extremely flammable gas.
  • H225 Highly flammable liquid and vapour.
  • H226 Flammable liquid and vapour.
  • H280 Contains gas under pressure; may explode if heated.
  • H302 Harmful if swallowed.
  • H312 Harmful in contact with skin.
  • H315 Causes skin irritation.
  • H317 May cause an allergic skin reaction.
  • H318 Causes serious eye damage.
  • H319 Causes serious eye irritation.
  • H332 Harmful if inhaled.
  • H336 May cause drowsiness or dizziness.
  • H361 Suspected of damaging fertility or the unborn child.
  • H373 May cause damage to organs through prolonged or repeated exposure.
  • H400 Very toxic to aquatic life.
  • H410 Very toxic to aquatic life with long lasting effects.

Know Your Spray Paint - MTN 94 MSDS Excerpts

MSDS [Material Safety Data Sheet] for #01440 - MTN 94 SPRAY PAINT
Montana Paints
Link to complete 2017 MSDS Sheet

MTN 94
Code: AC0140003
Version: 7 Revision: 30/06/2017 Previous revision: 23/06/2017 Date of printing: 23/10/2018

RELEVANT IDENTIFIED USES AND USES ADVISED AGAINST: Intended uses (main technical functions): Paint.
Sectors of use: Consumer uses (SU21).
Uses advised against: [_] Industrial [X] Professional [X] Consumers

This product is not recommended for any use or sector of use (industrial, professional or consume) other than those previously listed as 'Intended or identified uses'.

DANGER: Flam. Aerosol 1:H222+H229 | Skin Irrit. 2:H315 | Eye Irrit. 2:H319 | STOT SE (narcosis) 3:H336 | STOT RE 2:H373i | EUH066
Danger class
Classification of the mixture
Flam. Aerosol 1:H222+H229 Skin Irrit. 2:H315
Eye Irrit. 2:H319
STOT SE (narcosis) 3:H336 STOT RE 2:H373i

Routes of exposure
Skin Eyes Inhalation Inhalation Skin
Target organs
Skin Eyes CNS Systemic Skin
Dryness, Cracking

Full text of hazard statements mentioned is indicated in section 16.
Note: When in section 3 a range of percentages is used, the health and environmental hazards describe the effects of the highest concentration of each component, but below the maximum value.
Hazard statements:
This product is labelled with the signal word DANGER in accordance with Regulation (EU) No. 1272/2008~1221/2015 (CLP)

  • H222 Extremely flammable aerosol.
  • H229 Pressurised container: may burst if heated.
  • H373i May cause damage to organs through prolonged or repeated exposure if inhaled. H319 Causes serious eye irritation.
  • H315 Causes skin irritation.
  • H336 May cause drowsiness or dizziness.

Precautionary statements:

  • P101 If medical advice is needed, have product container or label at hand.
  • P102 Keep out of reach of children.
  • P103 Read label before use.
  • P210 Keep away from heat, hot surfaces, sparks, open flames and other ignition sources. No smoking.
  • P211 Do not spray on an open flame or other ignition source.
  • P251 Do not pierce or burn, even after use.
  • P271-P260d Use only outdoors or in a well-ventilated area. Do not breathe spray.
  • P410+P412 Protect from sunlight. Do not expose to temperatures exceeding 50oC/122oF.
  • P501a Dispose of contents/container in accordance with local regulations.

Supplementary statements:
EUH208 Contains polyhydroxyalkylamides, 2-butanone-oxime. May produce an allergic reaction. Substances that contribute to classification:
Xylene (mixture of isomers)
Ethyl acetate

Hazards which do not result in classification but which may contribute to the overall hazards of the mixture: Otherphysicochemicalhazards: Vapoursmayformwithairamixturepotentiallyflammableorexplosive. Otheradversehumanhealtheffects: Nootherrelevantadverseeffectsareknown.
Other negative environmental effects: Does not contain substances that fulfil the PBT/vPvB criteria.

3.1 SUBSTANCES: Not applicable (mixture).

3.2 MIXTURES: This product is a mixture. Chemical description: Aerosol.

HAZARDOUS INGREDIENTS: Substances taking part in a percentage higher than the exemption limit:

  • 15 < 20 % Butane
  • 15 < 20 % Xylene (mixture of isomers)
  • 15 < 20 % Ethyl acetate
  • 5 < 10 % Propane
  • 5 < 10 % Isobutane
  • 1 < 2 % Ethylbenzene
  • 1 < 2 % n-butyl acetate
  • < 0,15 % Polyhydroxyalkylamides
  • < 0,15 % 2-butanone-oxime

Symptoms may occur after exposure, so that in case of direct exposure to the product, when in doubt, or when symptoms persist, seek medical attention. Never give anything by mouth to an unconscious person. Lifeguards should pay attention to self-protection and use the recommended protective equipment if there is a possibility of exposure. Wear protective gloves when administering first aid.

Inhalation of solvent vapours may produce headache, dizziness, fatigue, muscular weakness, drowsiness and, in extreme cases, unconsciousness.
Remove the patient out of the contaminated area into the fresh air. If breathing is irregular or stops, administer artificial respiration. If the person is unconscious, place in appropriate recovery position. Keep the patient warm and at rest until medical attention arrives.

Skin contact causes redness. Prolonged contact may cause skin dryness.
Remove immediately contaminated clothing. Wash thoroughly the affected area with plenty of cold or lukewarm water and neutral soap, or use a suitable skin cleanser. Do not use solvents or thinners.

Contact with the eyes produces redness and pain.
Remove contact lenses. Rinse eyes copiously by irrigation with plenty of clean, fresh water for at least 15 minutes, holding the eyelids apart, until the irritation is reduced. Call a physician immediately.

If swallowed, may cause irritation of the throat, abdominal pain, drowsiness, nausea, vomiting and diarrhoea.
If swallowed, seek immediate medical attention. Do not induce vomiting. Keep the patient at rest.

The fraught business of removing and selling street art murals

The fraught business of removing and selling street art murals
Published on CNN, 20th January 2020 (LINK)

Written by Christy Kuesel

This article was published in partnership with Artsy, the global platform for discovering and collecting art. The original article can be seen here.

Banksy is well known for creating murals in the dead of night, frequently addressing social ills like homelessness or poverty. Tourists and fans gather around each of his new creations, often spurred to the site by a post on the anonymous artist's Instagram account. So the idea of removing one of these works from public view and selling it is bound to stir up strong emotions.

"It's against the street art world for items that are done in public to be sold," said Darren Julien, founder and CEO of Julien's Auctions, which specializes in selling pop culture-related items and street art.

Many businesses tagged by a famous street artist may not want the attention, or would rather take the financial windfall that could result from selling the work. The owner of a Valero gas station in Los Angeles certainly benefited from Banksy's creation of "Flower Girl" (2008) on their wall. The work depicts a girl with a basket of flowers staring up into a security camera, and was created late one night in 2008.

Another street artist, Mr. Brainwash, asked the gas station owner if his friend could stencil something on the side of the wall. The work later appeared on Banksy's website. When the owner of the gas station decided to sell the property, he looked into ways to save the mural.

How Julien's Auctions actually got a nearly 8,000-pound hunk of concrete to auction, however, is a bit more complicated. The auction house advanced the seller the $80,000 removal cost, and a construction crew came in and removed the section of wall on which the mural was painted. The 2013 sale of "Flower Girl," which brought in $209,000, was one of the first times the street artist's work had been auctioned in the US.

Sales of street art murals in general are divisive. Artists often object to the transformation of a work they created for public enjoyment into an art object to be bought and sold. Although Julien acknowledged the controversy around selling Banksy murals, he argued, "The other side of it is that [auctions are] really what made them famous."

A Primer on Aerosols

Aerosols, explained
Tiny particles floating in the atmosphere have a much bigger impact on the planet than you might think, and human activity plays a role.
BY ALEJANDRA BORUNDA for National Geographic

THE MOST VIBRANT sunsets, cloud-choked skies, and cough-inducing days all have something in common: They happen because of aerosols, tiny particles that float in the air. Aerosols can be tiny droplets, dust particles, bits of fine black carbon, and other things, and as they float through the atmosphere they change the whole energy balance of the planet.

Aerosols have an outsized effect on the planet’s climate. Some of them, like black and brown carbon, warm the Earth’s atmosphere, while others, like sulfate droplets, cool it. Scientists think that on balance, the whole budget of aerosols ends up cooling the planet slightly. But exactly how much, and how much that effect can shift over days, years, or centuries is still not totally clear.

What are aerosols?
The term aerosol is a catch-all for many kinds of little bits of stuff that end up suspended in the atmosphere, from the surface of the planet all the way to the edges of space. They can be solid or liquid, infinitesimally small or big enough to see with the naked eye.

“Primary” aerosols, like dust, soot, or sea salt, come directly from the planet’s surface. They get lifted into the atmosphere by gusty winds, shot high into the air by exploding volcanoes, or they waft away from smokestacks or flames. “Secondary” aerosols form when different things floating in the atmosphere—like organic compounds released by plants, liquid acid droplets, or other materials—crash together, culminating in a chemical or physical reaction. Secondary aerosols, for example—make the haze that gives the U.S.’s Great Smoky Mountains their name.

Aerosols come from both natural and human sources—and sometimes both at once. Dust, for example, is scoured from deserts, the dried-out edges of rivers, dry lakebeds, and more. Its concentrations in the atmosphere rise and fall with climate; in cold, dry, periods in the planet’s history like the last ice age, more dust filled the atmosphere than during warmer stretches of Earth’s history. But humans have affected that natural cycle, making some places dustier than they otherwise would be and keeping other areas damp.

Sea salts provide another natural source of aerosols. They’re whipped out of the ocean by wind and sea spray and tend to fill the lower parts of the atmosphere. In contrast, some types of very explosive volcanic eruptions can shoot particles and droplets high into the upper atmosphere, where they can float for months or even years, suspended miles above Earth’s surface.

Human activity produces many different types of aerosols. Fossil-fuel burning produces particles, as well as the well-known greenhouse gases like carbon dioxide—so cars, airplanes, power plants, and industrial processes all produce particles that can collect in the atmosphere. Agriculture produces dust, as well as other things like aerosolized nitrogen products, both of which affect air quality near and far.

Face-Scanning Tech Expanding in USA, EU

Fight against facial recognition hits wall across the West
The result is an impasse that has left tech companies largely in control of where and how to deploy facial recognition.

12/30/2019 05:03 AM EST

Face-scanning technology is inspiring a wave of privacy fears as the software creeps into every corner of life in the United States and Europe — at border crossings, on police vehicles and in stadiums, airports and high schools. But efforts to check its spread are hitting a wall of resistance on both sides of the Atlantic.

One big reason: Western governments are embracing this technology for their own use, valuing security and data collection over privacy and civil liberties. And in Washington, President Donald Trump’s impeachment and the death of a key civil rights and privacy champion have snarled expectations for a congressional drive to enact restrictions.

The result is an impasse that has left tech companies largely in control of where and how to deploy facial recognition, which they have sold to police agencies and embedded in consumers’ apps and smartphones. The stalemate has persisted even in Europe’s most privacy-minded countries, such as Germany, and despite a bipartisan U.S. alliance of civil-libertarian Democrats and Republicans.

Advocates for tighter regulations point to China as an example of the technology’s nightmare potential, amid reports authorities are using it to indiscriminately track citizens in public, identify pro-democracy protesters in Hong Kong and oppress millions of Muslim Uighurs in Xinjiang. Current implementations of the software also perpetuate racial bias by misidentifying people of color far more frequently than white people, according to a U.S. government study released just before Congress left town for Christmas.

“Facial recognition needs to be stopped before a fait accompli is established,” Patrick Breyer, a member of the European Parliament for the Pirate Party Germany, told POLITICO.

"The use of facial recognition technology poses a staggering threat to Americans’ privacy," Sen. Ed Markey (D-Mass.), who is prepping legislation to crack down on the software, said in June.