Austin Padgett and Rusty Close delve into the 5Pointz case, where graffiti art clashed with property rights in Queens, NY.
In this episode of No Infringement Intended, hosts Austin Padgett and Rusty Close delve into the 5Pointz case, where graffiti art clashed with property rights in Queens, NY. Explore how the Visual Artists Rights Act (VARA) impacts artists and property owners and learn about the legal criteria for recognized stature in art. Whether you're an art enthusiast, a legal professional, or simply curious about how art and law intersect, this episode offers insights into the delicate balance between creative expression and property rights.
No Infringement Intended, hosted by Rusty Close and Austin Padgett, is your go-to podcast for exploring the fascinating intersection of intellectual property and pop culture.
No Infringement Intended — Why Can’t I Clean the Graffiti Off My Walls?
Hosts: Rusty Close and Austin Padgett
Recorded: April 16, 2025
Aired: June 10, 2025
Austin Padgett:
Come one, come all. Welcome to No Infringement Intended, an intellectual property podcast of our law firm, Troutman Pepper Locke, hosted by the so-called bad boys of intellectual property, Rusty Close and me, Austin Padgett. While you're settling in for this episode, please make sure that you're subscribed, and what a great time to light up those five stars for your friends over here.
I feel like I mentioned it every episode, but the numbers and renown coming out of this podcast have excited the firm leadership so much that they're thinking about commissioning a big mural of us to go in the snack lounge here in Atlanta. I was shooting for some stained-glass work, but a mural sounds good too. Speaking of murals, Rusty, do you have any favorite murals or art installations in your life?
Rusty Close:
Living in Atlanta, I feel like there have been murals sort of dedicated to the rappers of the Atlanta scene. And I seem to remember an outcast-themed mural somewhere in Atlanta that I really liked. And Justin Fields, the quarterback, formerly of the University of Georgia, formerly of Ohio State, formerly of the Bears, formerly of the Steelers, and I think now the Jets, we went to the same high school and there's a pizza place up near where we live and there's a big mural of Justin Fields painted on the side of that pizza place.
Austin Padgett:
That's very cool. He was a great player.
Rusty Close:
Still is.
Austin Padgett:
Yes. Yeah. Sure. Yeah. That is the trouble, though, with modern athletics is how many teams people play for. It's tough to keep track of everyone.
Rusty Close:
Last time I drove by, it was still painted with the Bears uniform and logo. It needs some updating.
Austin Padgett:
Okay. I got you. Yeah, I did not realize he had made a move in the offseason.
Rusty Close:
I think that he is with the Jets. I don't follow all the sort of machinations of the player movement throughout the NFL, but I'm pretty sure the Jets is where he landed.
Austin Padgett:
Okay. Well, maybe he'll be the answer.
Rusty Close:
Doubtful.
Austin Padgett:
Yeah, unlock a lot of potential there. Okay, so in the tattoo episode, I mentioned that I grew up in Milton, Florida, which is just outside of Pensacola. When we went to the mall or wanted to see a movie, we'd drive about 30 minutes or so over to Pensacola for those so-called big city amenities. I bring it up because Pensacola has this landmark known as the Graffiti Bridge. Have you ever seen this thing, Rusty?
Rusty Close:
I can't say that I've honestly ever been to Pensacola, but it makes me almost want to go.
Austin Padgett:
I knew that you had been to Panama City Beach, because we talked about some of your ventures a few episodes ago.
Rusty Close:
Yeah, many times. Many times.
Austin Padgett:
Yeah. Well, just head west, young man, and you'll bump into Pensacola at some point in time. This graffiti bridge is on 17th Avenue, and it's really close to where you get onto the bridge to go over to the island that has Pensacola Beach on it. I mean, 17th Avenue does this dip down and then kind of turns and it goes underneath a railroad that crosses the location. The bridge is actually kind of a railroad trestle. And it's notoriously low, so it's actually rather common that tall trucks come through here without hitting eating the side edge and smash into the overpass. You can find clips on YouTube of this happening.
Rusty Close:
Some of my favorite clips to watch, some of my favorite reels.
Austin Padgett:
That's one of in my list of top 50 worst days, that's one of them is driving the truck and smashing into something like that.
Rusty Close:
We'll save that for another episode.
Austin Padgett:
Yeah, I'll list all 50 of them. I've got good taxonomies on things like this of like what do…
Rusty Close:
Special holiday episode, Austin's worst 50 days.
Austin Padgett:
That's right. You get the best 50, then we'll do the worst 50. Well, okay, so you go down this thing. You also see a bunch of locks attached to a nearby fence that are like this romantic gesture, akin to locks that lovers put on the Bridge of Sighs in Venice, if you know that. But this one is a chain link fence that overlooks a marshy retention pond. It's a little different. And some people in the area would call it boggy. That's more of a Niceville, Florida term, but I think it's appropriate here.
Rusty Close:
But also sounds just as romantic as Venice, Italy.
Austin Padgett:
It's one of my great regrets is never having the time of my life where my love and I went over and put a lock on the old chain link fence. But the best part of this location is, as the name gives away, the graffiti that's on the trestle. And as local legend goes, it started in the 1930s and people would go down and paint the trestle up. Of course, you know, most people would call that vandalism, but this trestle is owned by the freight railroad company that runs the rails across it. But the way the road scoops down for the turn under this trestle, you're kind of transported for a second because you're going downhill and making this little turn. You're kind of opening yourself up into this new, weird world and place. And it's right, just apparently for some artwork.
And over time, the graffiti bridge just became a place where artists went to show off their work, or to celebrate some local event, or a birthday, etc. And when I tell you, Rusty, that it changes often, I mean sometimes daily. You might drive into work or go to the beach in the morning and see some new artwork then and you'll come back and it's a totally different driving home. It can change that quickly.
Rusty Close:
Sounds exciting.
Austin Padgett:
Very exciting. It's the highlight of your day sometimes, particularly if the weather's bad over on the beach or the south side.
Rusty Close:
Or boggy.
Austin Padgett:
Yeah, exactly. A few years ago, I saw somewhere, someone I went to high school with was actually making jewelry from the bridge. And to give you a concept, it wasn't like the rocks from the bridge, it was just the hardened paint, the layers of paint that had hardened over time. It's that thick of build-up.
Rusty Close:
Oh, so he's kind of like flaking off in chunks and making jewelry out of those –
Austin Padgett:
Yeah.
Rusty Close:
Okay.
Austin Padgett:
Yeah. And so it's very colorful. It looks like – I don't know if you've seen these videos where people melt crayons and stuff altogether and they just kind of come together and make this weird thing. That's what it kind of looks like.
Rusty Close:
When I'm not watching trucks crash under overpasses, I'm watching melting crayons.
Austin Padgett:
Yes. And my top 50 types of YouTube videos, that's up there as well. Jellies, marble runs, all those sorts of things are big in my world as well. I have this connection with growing up with this concept of local street art, even though I wasn't in Atlanta, which has some great art throughout the city. But the graffiti bridge in Pensacola isn't unique in this concept. And so today I want to tell you about the 5Pointz, which is the 5 P-O-I-N-T-Z, the 5Pointz case, that relates to how real property and intellectual property collide.
Rusty Close:
Some of my favorite topics.
Austin Padgett:
Yes, exactly. Collisions. But before we get there, I need to tell you about VARA, the Visual Artist Rights Act. Let me give you some background on that. Remember back, this was several months ago now, Rusty, we to our very first episode about Taylor Swift. And then I think it's our third episode, we do cover bands. And both of those, we talked about this so-called copyrights bundle of rights. And that is, if I have a copyrightable work, and another shout out to our previous episodes. If listeners want to go back, they can listen to the Mike Tyson tattoo episode to find out more about copyrightability. But if I've got a copyrightable work, then I have a bundle of rights to do specific things. And Rusty, do you happen to recall that list of rights? And, actually, do you have a personal favorite of them?
Rusty Close:
Oh. When I think about the bundle of rights, I always think about the Led Zeppelin cover. He's holding the bundle of sticks across his back. That's my copyright vision there. I think my favorite would be publicly performing the work, right? I like to go to concerts. I like to see live music. That's a big one for me. You can be the person who distributes the work or reproduces the work. You perform it, you can publicly display it, you can create derivative works of it. And if we're, let's see, something about digital transmissions, if we're talking about recorded music, something like that.
Austin Padgett:
Yeah, we'll have to cover that in a future episode because that's the weird one. Well, you've specifically navigated my second personal favorite icebreaker to use. My first is always to ask people the worst thing that they've ever done in their life. But if I can't do that one, which is pretty often, I'll often go to what's your favorite of the bundle of rights under copyright?
Rusty Close:
It's just as much of a hit as commercial jingles, right? It's just all in your bag. You're just ready.
Austin Padgett:
That's right. You got to ask people questions. You got to wonder what's going on in their life. Here's the thing, Rusty. I lied to you about that bundle of rights. There are more rights that exist under the Copyright Act. The bundle of rights focuses on what are thought as the economic rights. Those things you just listed, publicly performing or distributing it, those are kind of known in the category of economic rights.
There's a group of other rights known as moral rights that we should discuss, and we must because that's how we get to this episode. Let's say you go to a fancy art school and you learn how to do sculpture, and you've developed your own theme and style for your statues. Do you have anything in mind that you're going to be specifically doing?
Rusty Close:
It's a universe I like to think about. Young Austin, JanSport backpack full of spray paint cans and Young Rusty with his chisel and his hammer focusing on his sculpted works, right? I don't know. I think maybe reclaimed metal and trash and things like that, and maybe how I'm going to piece it all back together into really something artistic.
Austin Padgett:
Okay, I love that. Yeah. Now, in this situation, I'm going to be the big developer. I'm super rich. I make all this money. You're the poor little artist and you make sculptures and you get paid a handsome fee, but it's no life compared to mine. I'm just setting up how we're appearing in this hypothetical. And I'm here in town and I'm about to open my hotel, my piece de resistance. It's going to be amazing. But my lobby is missing the statement piece that I need. And I want it to be trash. I want to be made out of trash and old metal.
I give you a call and I invite you to come look at the space and you know just the thing that you're going to do. You create this kind of one of a kind piece that I buy and I put in my hotel lobby. And here's the thing, I die and my business partner takes control of the property. He has always hated you. And more than that, he's hated your statue that you've created in the lobby. He hates trash in general and never thought it was a good fit for the lobby.
He orders a few things to happen. He takes your name off of the plaque by the sculpture and anywhere else that it appears. And he also decides just out of spite to take a torch to the top of your sculpture and melt all that metal and it's just kind of leaking all over the place. And he leaves it half melted in the lobby for the next three months, after which the sculpture will be entirely melted down and thrown into a dumpster somewhere. And maybe you'll reclaim it and make it something else, but that sculpture is gone. How do you feel about it?
Rusty Close:
I guess in this hypothetical, I am an artist and I'm all about the art, right?
Austin Padgett:
Correct.
Rusty Close:
And so probably I'm falling into a deep, dark depression to see my artistic expression treated in such a way. I like to think in reality, as long as I was paid and as long as that check cleared, I feel just fine about it.
Austin Padgett:
Okay. You're going to fall outside the norm for what we generally find. But yeah, that's one man's trash or so to speak.
Rusty Close:
Well, yeah, it's another man's treasure, which is in my bank account.
Austin Padgett:
That's right.
Rusty Close:
But again, for the sake of [inaudible 0:11:41], I'm just devastated by the action of your business partner.
Austin Padgett:
Thank you. Yeah, that's what I needed. It was paid for. The sculptor was paid for. It no longer belonged to you. You couldn't come to the lobby and just take it. But perhaps something isn't sitting right. That's not a great feeling, what happened here in this hotel lobby. And that may be because that you've allowed the Europeans to influence your concepts of creativity and property ownership.
Since the late 1700s and early 1800s, the French have set out what we call the concept of moral rights along with some other countries that have developed similar concepts. We had the economic rights. And now we're going to focus on these so-called moral rights. And primarily, we're talking about the right of attribution. That is the right to be recognized as the rightful author of a work. And the right of integrity, and that is protecting the work from distortion, mutilation, destruction.
The US did not have this concept in its copyright acts when it passed, even as late as the 1970s, which was the most recent major copyright act that we have, and we've talked about that several times in different episodes. A handful of states, starting with California, California, as you expect, in the late 1970s, began creating types of rights kind of like this, the right of attribution, the right of integrity, those sorts of things at the state level. But the levy really breaks in 1989 when the US joins the Berne Convention, which is this international agreement between a lot of countries for protecting creative works across different boundaries.
The US has accession to the Berne Convention and it forced the US to align its laws with the convention standards regarding these so-called moral rights. We already had the economic rights, of course, but now we need to get this concept into our own laws. Congress passed what was called the Visual Artists Rights Act in 1990, and the debate on the floor of Congress is what we set up earlier in the hypothetical, the right of a property owner to do what they want with their property, which is, when I think about it, classic American property ownership rights versus an artist's personal and reputational interests, which is more of this European concept that we're kind of blending in.
VARA, that's the name of the act, sets up – or the shorthand for the act, I should say, it sets up the US's versions of moral rights. It only applies to works of certain types of visual arts. So there has to be a one-of-a-kind or a limited edition of 200 or fewer copies. It has to be special art. It doesn't apply to mass-produced sculptures that you can buy at your local store and just put up and everyone in the neighborhood actually has one of these because it's the hot item. You can smash those up, paint them up, whatever. This doesn't apply to them. But if it's one of these limited types of works. And it's not a work made for hire, and that was discussed a little bit in our special episode on the social network if folks want to go back and listen to that.
The artist for his or her lifetime has certain moral rights of attribution, declaim authorship and the right of integrity, which is where I really want to focus on. There's kind of two sections to the right of integrity. The right of authorship is this right of having your name attached to the work, not having anyone else's name attached to the work, and also being able to remove your name if someone does something to the work and those sorts of things. So you have control over your name and your reputation.
The right of integrity has two flavors under the US version of this. There's this protection against distortion and mutilation versus the second, which is protection against destruction. And what matters is that there's slightly different standards for each. Under VARA, for protection against distortion and mutilation, you get protection where you can meet these two elements. The act of distortion and mutilation has to be intentional as opposed to like an accident during transport, for example, like I was moving and it fell off the truck.
In second, the alteration has to be prejudicial to the artist's honor or reputation. And so, additionally, for protection against destruction, the work has to be of recognized stature, which is the second category that we're getting to. For destruction under VARA, you have to meet both of those things that has to be an intentional act and there has to be some sort of prejudicial elements. But most of all, the work has to be of a recognized stature. You can't destroy a work that is of a recognized stature. And so it has to be widely acknowledged as having significant artistic value. We'll talk more about this in a couple of minutes. And how you would demonstrate this is through various forms of recognition within the art community or whatever it might be.
Rusty Close:
Can I jump in? I just want to ask a distinction and make sure I understand when VARA does and doesn't apply. If I, famous artist, famous sculptor, I create the breathtaking work of art, and you come along and buy it, then VARA would apply. If you commissioned me to make some work of art, that'd be a work for hire, and VARA would not apply. That way, when I turn over the project to you, you can do what you want to, you can destroy it, you can deface it, whatever?
Austin Padgett:
Yeah. If we can get it – and this is why we'd love to get in a work made for hire. The work made for hire provision only applies. We talked about in the social network that it applies to work of employees or works of agents in that type of employee-employer relationship. We may not call them an employee. But if they meet all those elements, we might have an argument that, "Okay, this was a work made for hire." And so the important part in a work made for hire is that the artist of the author, as we'd call it in the Copyright Act, they never owned it as a legal truth. The employer owns it.
Well, there's a second way, I should say, to get work made for hire, and that's in commissioning certain types of works. It doesn't have to be an employee, but it's a limited list of works, and it does not include a sculpture or a piece of art typically.
Rusty Close:
Thank God.
Austin Padgett:
Yeah, exactly. I think maps are one of the things on the list. It's a limited list. I always have to go back and remind myself of what it is. It's like supplementary works, and maps and things like that It's a very limited list of things that not-employees can create that are still works made for hire. And you have to have a signed writing. They're written with level requirements for that type of thing, too.
Okay, Rusty, we have some background now on what VARA is. I want to take you to now this 5Pointz case, and let's talk about graffiti because that's really where we started the episode. And it's really what I want to talk about more than anything today anyway. Let's go from Pensacola, Florida and head up to Long Island City, Queens, New York. Specifically, let's go to 45 Davis Street. It's a location that's been used for industrial purposes, historically. Manufacturing declined in the area, the structures have fallen into disuse. And as you would guess, total disrepair.
In the early 1990s, the neglected buildings of this location start to attract graffiti artists. These are huge canvases. If you look at a picture of this place, it's a lot of room to do some work on. You've got these huge canvases for street art, and you have two characters emerge from this story. You've got Gerald Walkoff, who is the owner of the company that owns the building. And so we'll just refer to him kind of as the building owner for our purposes here. And Jonathan Cohen, who is the graffiti artist and also clearly has some level of organizational skills, as I'll talk about in a second.
By the early 2000s, Walkoff agrees to allow Cohen and other graffiti artists to use the buildings for their art. And Cohen starts to curate what is happening in this location. Cohen is selecting artists from really around the world eventually, and approving artwork, and organizing events. And he even has like workshops at the site. It's really becoming a thing. And by this point in time, it's being called this 5Pointz with the Z at the end as well. It's the 90s, so we had to add the Z to it.
Rusty Close:
I was really hoping Cohen himself was 5Pointz because I would think graffiti artists have a handle, some other name that surely he doesn't just go by Cohen all the time.
Austin Padgett:
Right. Exactly. Yeah. It's the 2000s. Now, we've into – the 90s have kind of was the places to become established as graffiti place. 2000. Things are roaring along until 2008. You remember those days like, Rusty, right? 2008?
Rusty Close:
I do. This is a lawyer Rusty, not sculptor Rusty. Graduated law school in '07. Going to set out, going to be a lawyer, going to make a career, and then decided I didn't want to make a career doing what I was doing and decide to go back to engineering school.
Austin Padgett:
Yeah. A lot of life choices were made around this point in time. I don't have any information specific to this property, but I know that coming out of the recession, the real estate market had an increased demand for luxury housing and commercial development. You had the great recession, as it was called, and then you kind of had this big buildup. And in that, there were trends. One of them was this luxury housing, commercial development trend.
It seems at least on trend that in 2013, a big change happens. Wolkoff announced plans to demolish the 5Pointz building to construct luxury apartments. This sets people into two camps that we talked about earlier on about this property. Wolkoff is doing what he wants with the property. Versus Cohen and the artists, they are arguing that the site has significant cultural and artistic value and should be preserved.
Cohen starts this petition and tries to get the landmark status for the complex. So it would give a protected status over the whole thing. And Cohen and the other artists filed this lawsuit against the property owner under VARA, this act that we talked about. And at this point, they are trying to save a location and avoid the destruction of their works. Remember, a plaintiff needs to show an intentional destruction of a work, of a recognized stature on the destruction element.
A critical point of contention was whether the graffiti artwork, I should say artworks because they're classified as separate works on these locations, were of a recognized stature, which is a requirement under VARA for the protection against destruction, of course. The artists are dealt a blow early in this case. In filing it, they sought a preliminary injunction to stop the demolition of the buildings themselves. And the court heard testimony from three of the 17 artists and what the court referred to as limited or expert analysis.
At that early stage, the court was not comfortable issuing an injunction. And that order came out on November 12th, 2013. One week later, on the night of November 19th, 2013, Walkoff orders the buildings to be whitewashed, effectively just destroying all of the artwork on them. And this action was taken without prior notice to the artists, which there's a notice requirement, we'll talk about that in a few minutes, under VARA as well. But this, more than anything, exacerbated the contentiousness of this relationship between the parties.
The artists were devastated by the sudden destruction of all these works. And Cohen and the others expressed their outrage and their total disappointment viewing the whitewashing as deliberate and disrespectful act. And it will become kind of like this event, this night will become more or less the key point event later on in the case. At this point, the damage is done. And we're going to trial on this thing.
And so here are the big questions, does graffiti count as visual art for these purposes? That it has to be a work of visual art. And this is defined in the statute as a painting, drawing, print, or sculpture existing in a single copy or in a limited edition of two under copies or fewer that are signed and consecutively numbered by the author. I should tell you, I've simplified some of these elements when we were talking earlier, but that is the definition of a work of visual art. To mean anything, to fall under VARA and get its protections.
But what about the temporary nature of these works? Many pieces were routinely painted over. So there's this concept of impermanence, and that's part of kind of graffiti culture. We talked about this with the graffiti bridge, it can change day to day. It didn't appear to be that extreme at this location, but it's a routine happening where some works come and they stay for a while, some works go.
The artists are arguing that VARA does not require permanence, that even these types of works can have artistic merit and cultural impact, and that certain murals actually did remain untouched for extended periods of time. And ultimately, the court agreed with the artists that permanence is not a requirement. We have kind of this big issue of does a graffiti actually count because of the nature of graffiti? And the court's like, "Yeah, it's still artwork. It still meets this requirement, whether or not it stays up for an extended period of time isn't part of this definition. I'm going to count it."
So then we come to the even bigger question of, did these graffiti murals meet the level of recognized stature to trigger VARA? That's the key. This is the key to the case, recognize stature. Of course, the defense is arguing about the temporary nature of all these things. But also, their best argument is really that the plaintiffs are arguing more about the artist's reputation and the collective nature of the site as being kind of the mecca of graffiti in this area, that it is an established institutional, well-known site that has cultural and meaning and impact, rather than the individual works themselves, which are, that's supposed to be what's at issue in VARA is what the building owner is saying. And that's true. The plaintiffs have an art expert and are harping on the artist's professional achievements. They have exhibitions and commissions and teaching positions, but they also have a wide range of media coverage and public acclaim evidence that they've put into the record about these artworks, some about the site as a whole and some about individual pieces in particular. And so the court weighs all these things and ultimately finds that 45 of the 49 works at issue met the criteria for recognized stature.
Rusty Close:
I wish we could see the four that didn't rise to that level.
Austin Padgett:
I will pull those exhibits. And then, man, if we did show notes – at some point, we should do something like that and really work ourselves to the bone on this. And we could do show notes –
Rusty Close:
Worker shows more to the bone than we already are.
Austin Padgett:
Right, exactly. And you have the 45 versus the four, and we could have a poll even about do people see real differences? But it's not so much in the real difference of the look or appearance of the artwork. It's really of what was the impact of it, and was there enough evidence to sustain a finding that these were of recognized stature? That these things got enough press coverage. That critics loved them or had something to say about them, that they were part of the buzz of maybe the graffiti community. I don't know if there is such a thing, but I assume these folks have some way of communicating amongst themselves. That's what's that issue.
And the worst part for Walkoff is that this whitewashing night happened without providing 90-days notice, which is a requirement under the act. And we can certainly discuss that this notice period is for artists to come and get the work. That's what it's intended to do. But graffiti isn't like other works. It's attached to the wall itself. And so the notice is not required for these types of works where removing them or doing something with them would destroy or deface the property itself that they're attached to. The 90 days notice thing seems to be more about almost the nature of the event itself, more than the actual not providing notice.
Rusty Close:
If I'm the property owner, and I'm listening to all this, and I'm being told, "Hey, this is a work of visual art, and it doesn't matter the temporary nature of these works, and that they have met the level of recognized stature." I'm still going, "Yeah, yeah, yeah, great, great, great. This is my building, right? And I don't really care about all those rights." Where does his property ownership come into play here?
Austin Padgett:
What it really comes down to is this negotiation in Congress about how we're going to deal with this. There is – and I didn't mention this because it's one of our key takeaways, is that if you're a building owner or a real estate developer, these rights are waivable. They have to be waived with specificity. But they are waivable rights that you can manage under contract, which is something that comes down to almost all of our discussions that we can manage all of this with paper and with understanding early on, but it's got to be done. And this is what haunts some of our real estate clients sometimes where they'll buy the hotel or the location to – they're going to redo it and make it even better. But they're going to pay homage to the history of it and keep the essence of maybe the hotel lobby.
Let's go back to the hotel lobby. But there's this statue that it just does not work. It doesn't fit the theme anymore. So they pull it out and throw it in the dumpster. Or maybe they even sell it or – but they didn't meet the requirements for removal under VARA. And maybe there was enough press at one point in time or enough understanding of what this property was, that that is a work of recognized stature, or the murals come into it a lot, where they'll commission a mural to go up on the outside of the wall for maybe the grand opening, and it becomes a hot. Everyone's walking by it and seeing it. It's outside of the location itself. It's meant to draw attention to the eyes, and it gets all the press that they wanted, but there was never any paper about it.
And so when it comes time to do something new with that wall or freshen up the space, they start to either announce or they just go ahead and paint over it. Not even understanding necessarily what they're doing, but the intentionality isn't the intentionality to do some heinous act. It's the intentionality of putting the paintbrush up and removing the work or altering it in some way that triggers VARA. And, all of a sudden, the artist pops out of the woodwork maybe from ten years ago and it's like, "Hey, you actually kind of do that and now you owe me statutory damages come into play here." And so you can get deep into relatively large numbers for what you just thought was freshening up a little space.
Rusty Close:
Yeah. I mean, I don't want to sidetrack us too much on the property ownership issue and being the building owner and turning a blind eye, allowing these graffiti artists to use the walls of these buildings as their canvases. And then later on, finding yourself in a position where, "Wait a minute, you're saying I can't now clean this off because I've let them do this for years? And now my back is against the wall because now they've got these rights under VARA?"
Austin Padgett:
Yeah, to the American ear or heart, it feels weird because we're more of a property ownership, freedom-loving people, that, in this way, that this type of moral rights and worrying about people's feelings, that's not something that we're really good at. Or it becomes natural or first at least in our list of things. That's the reason this case really got some press out of it at the time is that this was like one of those things of like, "Wait a second, I could buy a building and maybe I could pitch it out of the kindness of my heart. I allowed these people to come. And while I'm not really doing anything with it, they can come and do their graffiti. What do I care? But now it's time, the recession's over, I can make some real money here. Time to get down to brass tacks. And let's sell this property or do something with it to exploit it. And now I'm stuck in a situation where I've got legal troubles and maybe my business partners or potential business partners don't want to join you up because I've got a case standing out." You can cause some havoc with VARA if that's part of your intention.
But also, on the other side of it, I can see the artist saying, "Listen, this was what we were known for. We were allowed to do this. We routinely did this. We built this thing up. And this is part of the VARA concept, is that this work is part of our reputation. This is part of our economic interest. Like Wall it moral rights, but it's really more of an economic right for the artists themselves of kind of like, "This is what I do. This is how I build my career, at least my artistic standing." Those are the two interests that we're trying to be weighed. And it really enters the US scene through the states, but mainly through this copyright. It's an act, but it's an amendment. It sits within the copyright act to get us good with our international obligations.
Rusty Close:
Can I ask another question? And we may not know the answer. So let's say Walkoff, the property owner, was aware of this 90-day notice and he gave – I don't know. I mean, does he give notice just to Cohen or to all, whatever, 45 of the artists who's work had risen to that level? Or maybe it's not all of them. But he gives them the 90 days. Lets them know, "Hey, this is what I'm planning to do. Come get your art." Right? But it's painted on the side of my building, there's nothing to come and get. Do we have any sense of how that plays out?
Austin Padgett:
I think in those instances, it's more of an injunctive relief that you're looking at. I don't know the exact answer to the question because we didn't necessarily have that in this case. I mean, for works that can be removed, that's what the 90 days notice is designed to create. It's like, "Hey, we've got to get rid of this thing. We have different plans for it. And so, I'm giving you 90 days notice to actually come and get it if you want it. You get the right to come and grab this thing."
Rusty Close:
But can you envision a scenario like we have here where the courts step in and say, "I mean, look, it's impractical for them to come and get it. It's permanently or semi-permanently affixed to the side of your building." And hey, tough, you can't do anything with your building because they've got these rights in this artistic expression.
Austin Padgett:
Yeah. And that might be another part of the 90 days notices that builds in enough time to understand what your rights are and try to challenge whatever you need to challenge. I didn't look at the historical record on that point of kind of like why 90 days or what is it really for? I just know that that's at least the stated reason and some of the notices that were in the congressional record. But it's an interesting question of what can an artist do once they create a work with the work itself and once it's sold as a piece of property?
The facts of this case are a little tougher, too, because you had this whitewashing event. And that's really what the court is really hung up on in the proceeding that that helped the court easily find the intentionality element was met and seems to color the decision throughout if you read it. Given the willful nature of the destruction, the court rewarded the maximum statutory damage amount of 150K per work, which is 45. And so you multiply it out, $6.75 million for the whitewashing event that happened. I don't know that there would have been any other better outcome for the property if there was some sort of an – I mean, if an injunction issues and you can't do anything with the property now, now you're really stuck. Maybe the measure of damages is your best remedy in that sense, given the circumstances.
Rusty Close:
I just imagine that being read in court and the property owner, like a cartoon face, just going immediately bright red and steam shooting out of his ears.
Austin Padgett:
Oh yeah. Yeah, just absolutely, "You got to be kidding me. It's just a building."
Rusty Close:
Yeah. Right. Just completely incredulous.
Austin Padgett:
Right. Particularly for a building that was in disrepair and disuse, it's not really a building, it's more of a complex of buildings, and walls, and stuff. But I mean, it's $6.75 million. We're talking real money here. And particularly, the worst part of it is, I think for them, is that it's graffiti. And so it's artwork that, by its very nature, is probably not valued by a real property developer type of. And the number of works that are all over the place is multiplied because of the nature of the work. Not only did you reach the max of your statutory damages, you're getting hit with multiple works to the tune of 45 of them because of the size of this property and the number of graffiti artists that you add.
Rusty Close:
Well, thankfully, he saved 600K because it was only 45 of the 49. Really not – it could have been worse.
Austin Padgett:
That's right. You got to look for the wins where you can. And so there was an appeal, the appellate court agreed with the lower court as to the recognized nature of the piece, the appellate court found that there is, "It's a necessary fluid concept," is what the court said, and that the work achieves this status when it's of a high quality and acknowledged by the relevant community, such as critics and curators. I think that's the unspoken part, is that this is graffiti. It's not what you would typically consider fine art. And so there's this nature and discussion that people are having to have about getting over the hump of what is art, which is another interesting question that's been tackled for ages in all sorts of not only court cases, but theater and all those sorts of things.
Takeaways from this. I mean, we mainly talked about them. I see this mostly as one for – this always comes up with our real estate clients, because they are the people that own places and things that people do this stuff with. I mean, certainly, if you have a client that has an art collection, they can't necessarily go by the painting and then deface it, perhaps. But that's never been of interest to any of my clients, so it hasn't come up.
The real estate clients are the ones where this has mattered the most. They're commissioning murals. They're trying to do nice things for their community and spaces, but they don't want to get taken to task when the time comes because every space needs freshening up over time is how it feels. And so you hire someone to come do a mural. At some point in time, it's got to go. Either it's become weathered or whatever it is. Maybe it's upkeep and it's a perpetual mural, but I haven't seen those in agreements. And so, typically what it is I'm looking for, "Okay, let's make sure we waive the rights in this because this is a one-of-a-kind piece." It's temporary in the sense that it's not going to live forever. Well, a big mural should last a long time, but it's not forever.
And so like I said, waiver is available. It has to be specific to the statutory requirements. It needs to be in the writing itself. Hopefully, it's done when you're negotiating the agreement because we've had others where we had to negotiate it after the fact. And that becomes a priceless gesture oftentimes. And so what's often better is having this specific agreement about the art and its use, and that it's even more expansive. For example, hiring a mural artist where the agreement includes rights to duplicate the mural, use it in advertising, those sorts of things. It's not only thinking about VARA and how this artwork will live and potentially not live, but then what else can we do with it if we're hiring? You have to think beyond the box.
Rusty Close:
The extreme facts of this case make it an interesting one for discussion. I think it's a little easier if we envision two parties that are working together, "Hey, we want this mural on our building. And what's the way to appropriately protect ourselves going forward?" Our takeaway is always put it in writing. Have a contract, right? If you're buying a piece of real estate or if you own a piece of real estate and people start using it as a graffiti canvas, maybe get ahead of that before it's too late.
Austin Padgett:
That's right. That's right. I think those are our main takeaways. And so I invite everyone to go out, buy some spray paint cans and express yourself. With that, I want to thank everyone for listening. Be sure to like and subscribe. And if you'd like, give us a five-star rating. Helps everyone know what we're up to here at No Infringement Intended.
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