Legal Information

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.

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."

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.

By JANOSCH DELCKER and CRISTIANO LIMA (POLITICO)
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.

Twitter Stencils Cause a... twitter (SF)

Twitter ad campaign runs afoul of city vandalism laws
EXAMINER STAFF; Sep. 12, 2019 4:45 a.m.; LINK with photos

Some BART riders have called a recent Twitter ad blitz around Powell Station “irritating” and “overkill,” but city officials are calling it illegal.

Or at least part of it.

The social media company launched an ad campaign this week in San Francisco and New York City that covered the walls of the station with images of user tweets about Twitter.

All well and good, if potentially annoying for some viewers, but the campaign continued outside with sidewalk chalk stencils extending into the Tenderloin — and that puts it in breach of The City’s vandalism laws, the Department of Public Works said Thursday.

“Our sidewalks are not to be used for commercial purposes, they are not billboards,” said Rachel Gordon, a spokesperson for DPW. “Any company that advertises on our sidewalks is breaking the law.”

Gordon said DPW will typically send crews out to remove the stencils and contact the person or company responsible to collect the cost of the cleanup.

“Our crews really should be focused on other areas, but we want to keep our sidewalks free of commercial content,” Gordon said.

A Twitter spokesperson on Thursday said the company’s media agency had “confirmed necessary approvals ahead of the chalk installation.”

“We haven’t been made aware of any legal issues related to the chalk. We will of course comply with any requests made by the city,” the spokesperson said.

Twitter is not the first company to run afoul of The City’s strict vandalism laws with sidewalk stencils.

Lyft, to give one recent example, drew legal action from City Attorney Dennis Herrera in 2015 after it stenciled ads on sidewalks across The City.

Broken Windows, Again?! Battle against taggers in SF, 2018 Recap

Battle against taggers makes its mark as San Francisco’s graffiti plague eases
SF Chron (LINK)
Evan Sernoffsky Jan. 4, 2019 Updated: Jan. 4, 2019 4 a.m.

They usually strike at night. Spray can in hand, they scrawl their crude tags on San Francisco’s historic brick facades, business windows and sidewalks.

And when morning reveals the destructive spree of graffiti, the vandals are usually long gone, leaving property owners with a stubborn cleanup job — possibly even a fine.

But thanks to an aggressive new strategy by police and prosecutors, such incidents of vandalism appear to be in decline, according to the latest numbers. Reports of graffiti to 311 have hit an all-time low since the city started tracking the data at the start of 2016.

There were 3,371 such calls in November compared with 7,611 reported during March, according to data provided by the district attorney’s office.

New Orleans Mural Sparks Constitutional Battle

Anti-Trump Mural Sparks ACLU Lawsuit and Public Art Dispute in New Orleans
Shortly after putting up a mural on his private property last year, Neal Morris received a letter from the city demanding its immediate removal and threatening jail time.
Benjamin Sutton for Hyperallergic

<< Cashy-D's anti-Trump mural in New Orleans (photo courtesy and © Neal Morris

Late last year, New Orleans developer Neal Morris commissioned the local artist Cashy-D to paint a mural on his private property. On November 4, the artist completed the piece, which features text from the 2005 Access Hollywood recording, in which President Trump boasts of sexually assaulting women. In the mural, select nouns have been replaced by images, like emojis in a text message.

Ten days later, Morris received a letter from the city’s Department of Safety and Permits faulting him for not following the proper permit process, demanding the mural’s removal, and threatening a “maximum fine or jail time for each and every day the violation continues plus court costs as prescribed by law.” Now, the American Civil Liberties Union (ACLU) of Louisiana has filed a lawsuit on behalf of Morris against the City of New Orleans, alleging that it has violated his rights under the First and Fourteenth Amendments.

“The ideal outcome is for the City to scrap its burdensome, confusing (and unconstitutional) permitting process for murals,” Bruce Hamilton, a staff attorney at the ACLU of Louisiana who is representing Morris, told Hyperallergic. “We don’t believe the government should get to decide what is art, which art is deserving of expression, and which art the public is allowed to see.”

H&M Lawsuit Against Street Artist Could Have Changed Copyright Law

H&M Lawsuit Against Street Artist Could Have Changed Copyright Law [UPDATED]
The clothing company claims it has dropped its lawsuit against the artist Revok after widespread outcry and calls for a boycott, though the artist’s lawyer claims that is not true.
Claire VoonMarch 15, 2018
Hyperallergic

Update, 3/15/2018, 4:30pm: According to the Daily Beast, H&M has withdrawn its lawsuit. It shared the following statement:

H&M respects the creativity and uniqueness of artists, no matter the medium. We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art.  As a result, we are withdrawing the complaint filed in court. We are currently reaching out directly to the artist in question to come up with a solution.

Update, 3/15/2018, 6:45pm: When reached by email, Revok’s lawyer said he was unaware of H&M’s decision to withdraw the lawsuit. “I don’t know what they are talking about and have not seen them make any public statement,” Gluck told Hyperallergic. “The lawsuit is not dismissed, and the artwork is even still being used on their website.”

We have reached out to H&M’s lawyers for clarification and will update when we hear back.

Update, 3/15/2018, 10:00pm: Revok’s attorney Jeff Gluck told Hyperallergic via email that he has spoken to the counsel for H&M, who told him that “that they are not in fact dismissing the lawsuit.” Hyperallergic has reached out to H&M’s attorneys and to the company’s PR department to confirm this but has received no response. Its statement noting that it is withdrawing the complaint has been shared as a story on its Instagram account.

Update, 3/16/2018, 11:20am: Court records indicate that the case was withdrawn this morning by “Voluntary Dismissal.”

Street artists are calling for a boycott of H&M after the Swedish clothing company took legal action against a graffiti artist to refute his rights over his own work. Across social media, artists including INSA, KAWS, and Lady Aiko are denouncing H&M for what they describe as an “assault on artists’ rights,” and calling for a boycott of the company.

5Pointz Artists Win $6.7m in NYC VARA Case

Decrying Real Estate Developer’s ‘Insolence,’ Judge Awards Street Artists $6.7 Million in Landmark 5Pointz Case

The ruling is a decisive victory for street artists.

Eileen Kinsella, February 12, 2018 (Artnet)

In a dramatic conclusion to a landmark case, a judge has ruled that a New York developer must pay $6.7 million to a group of graffiti artists to compensate for painting over their work without warning in 2013. The decision represents a decisive victory for street artists in a case that pitted their rights against those of a real estate executive.

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

In a 100-page decision handed down today, Judge Frederic Block awarded $150,000 for each of the 45 works for a total award of $6.75 million.

“5Pointz was its temple, though it can never be replaced, this judgement is a monumental step for our culture and our art form,” Jonathan Cohen (also known as Meres One), the former director of 5Pointz, said in an email to artnet News. “Judge Block’s decision will change the art form perception for generations to come.”

Judge Block had harsh words for Wolkoff and the 2013 whitewashing episode in particular. He wrote: “If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.”

fnnch Wants SF to Decriminalize Stickers and Posters

Street Artist 'Sign-Bombs' Downtown Neighborhoods With 450 'Honey Bears'
Mon. January 29, 2018, 4:34pm
by Nathan Falstreau for hoodline
 

Street art is part of San Francisco's landscape, but one local artist recently installed hundreds of pieces of his work to spark a conversation about using public spaces as a canvas for self-expression.

Over the weekend, fnnch [Stencil Archive album], best known for his depictions of honey bears, ladybugs, seashells, flamingos and turtles, fastened 450 pieces to utility poles between Market and Harrison and the Embarcadero and 5th Street. To comply with city rules for posting signs, he mounted the artwork using zip ties.

The installation, which features an array of honey bears and was billed as "sign bombing," aims to bring attention to what the artist deems "an excessive and absurd amount of [legal] signage." According to fnnch, adhering a "simple sticker" to public property could result in possible felony or misdemeanor charges.

The artist hopes to sway future legislation with the work and has teamed up with Care2 to start a petition urging members of the Board of Supervisors to decriminalize certain types of street art. As of this writing, the petition has garnered 10,816 signatures of support out of a goal of obtaining 11,000.

In particular, fnnch wants the city to decriminalize the application of stickers and wheatpaste—a removable adhesive that's commonly used by street artists.

“What I want to do is show the absurdity of our laws," he said in a statement. "Had these signs been affixed with adhesive to the poles, I could go to jail, but if they are put up with tape or a zip-tie, then it not only becomes legal to hang them up, but illegal for anyone to take them down.”

Coming Soon: Shepard Fairey's New LA Show and Hulu Doc

After ‘Hope,’ and Lawsuit, Shepard Fairey Tries Damage Control
By JORI FINKELNOV. 3, 2017 (LINK)

LOS ANGELES — By just about any measure, it’s been a long time since the street artist Shepard Fairey managed to capture the optimism of Barack Obama’s candidacy in his “Hope” poster, the stylized portrait in red, white and blue tones that easily ranks as the most famous, also ubiquitous, artwork of 2008.

Mr. Fairey’s oldest daughter, then 2 years old, is now almost a teenager. The “Hope” image became the subject of a copyright infringement lawsuit by The Associated Press that was both expensive and embarrassing for the artist. Mr. Fairey, who is 47, has since gone on to create art for activist movements like Occupy Wall Street, Black Lives Matter and the Women’s March.

And now “Damaged” — his biggest gallery show yet, with about 200 new paintings, prints and illustrations made since 2015 — is set to open on Nov. 11 in a Chinatown warehouse, the same day a documentary on the artist has its premiere on Hulu. The mood of the exhibition: what happens when hope gets trampled but not killed.

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