Whose Side You On?

[gmillerdrake]

Who's side you on? I'm with the Landlord. While I recognize the artistry, it simply was never their property. I don't understand how this ruling happened other than the judge having and ulterior motive.


https://www.dailymail.co.uk/news/article-5382921/Judge-awards-graffiti-artists-6-7M-works-destroyed.html

[The Walrus]

Unbelievable, in my opinion. How in the hell...

[El Barto]

I have no idea whose side I'm on based on this article. An informed decision requires understanding what the law is, not a gut reaction based on personal feelings.

If they're not going to tear the building down then they should have left them up there. It probably would have added to the value of the finished product. Plenty of people would pay more to live in that building with its unique artistic flair.

[gmillerdrake]

Shout out to EB for the grammatical clarification. Clearly I need more coffee today.....

[gmillerdrake]

I was more or less surprised that the owner of the property could be penalized for doing whatever he wanted to with his own property? I mean, he owns the property? If he wants to tear it down, paint it...burn it....blow it up, as long as it's legal he should be able to do whatever he wants without being sued.

[Adami]

The article seems to at least hint that the graffiti helped the value of the buildings sky rocket.


Also Gmiller, the article states that there was a law (don't know much about it) that talks about protecting art like that. So it wasn't just "I LIKE THESE GUYS THEY WIN".

[Chino]

I was more or less surprised that the owner of the property could be penalized for doing whatever he wanted to with his own property? I mean, he owns the property? If he wants to tear it down, paint it...burn it....blow it up, as long as it's legal he should be able to do whatever he wants without being sued.

I can't open the article here, but was this a historical or a protected district? There are tons of homes in Litchfield CT that, despite being owned, need approval before anything can be done to them. Want to change your windows or hedges in front? You need the town's approval. The town dictates the color of your house, exterior lighting, etc.. 

[cramx3]

I see the article calls them "recognized works of art" but what exactly does it mean?  Does that mean it was recognized by the local municipality and therefore needed some approval to be messed with?  I think under any basic scenario, I would side with the landlord, but I am wondering if there is some legality to those arts having their rights to those walls at this point.  It makes it seem like because of all the positivity to the community from the art, it may have gotten some protective status.  If not, then I am not sure how the landlord could be sued for it. 

[gmillerdrake]

Also Gmiller, the article states that there was a law (don't know much about it) that talks about protecting art like that. So it wasn't just "I LIKE THESE GUYS THEY WIN".

I saw that...it said:

Twenty-one aerosol artists had sued the owner of a Long Island City, Queens, site known as 5Pointz under the Visual Rights Act, a 1990 federal law that protects artists' rights even if someone else owns the physical artwork.

That's what I'm confused about. I can't understand how if someone tags and graffiti's up my building and calls it art that I wouldn't be able to remove it? Where is the line of it being vandalism and art? I do admit those pics on the building were far from typical graffiti but still....I don't see how you can't decide what you can do to your own property.

[Adami]

Well it can't be vandalism. The guy bought the buildings after the graffiti was up. The original owner allowed it.

But yea, like it or not, the law seems to be on the artist's side.

[The Walrus]

Well it can't be vandalism. The guy bought the buildings after the graffiti was up. The original owner allowed it.

Not that I'm pushing back on what you said, but as a point of conversation, vandalism's definition is the "deliberate destruction of or damage to public or private property" so I suppose the contention comes down to whether or not graffiti counts as destruction? This is a weird one.

[Adami]

Well it can't be vandalism. The guy bought the buildings after the graffiti was up. The original owner allowed it.

Not that I'm pushing back on what you said, but as a point of conversation, vandalism's definition is the "deliberate destruction of or damage to public or private property" so I suppose the contention comes down to whether or not graffiti counts as destruction? This is a weird one.

I think it also implies a lack of permission. If I allow something to happen, I can't then claim vandalism. Or else every home owner would sue designers or decorators that they didn't like.

[The Walrus]

Well it can't be vandalism. The guy bought the buildings after the graffiti was up. The original owner allowed it.

Not that I'm pushing back on what you said, but as a point of conversation, vandalism's definition is the "deliberate destruction of or damage to public or private property" so I suppose the contention comes down to whether or not graffiti counts as destruction? This is a weird one.

I think it also implies a lack of permission. If I allow something to happen, I can't then claim vandalism. Or else every home owner would sue designers or decorators that they didn't like.

Agreed.

[cramx3]

Well it can't be vandalism. The guy bought the buildings after the graffiti was up. The original owner allowed it.

Not that I'm pushing back on what you said, but as a point of conversation, vandalism's definition is the "deliberate destruction of or damage to public or private property" so I suppose the contention comes down to whether or not graffiti counts as destruction? This is a weird one.

I think it also implies a lack of permission. If I allow something to happen, I can't then claim vandalism. Or else every home owner would sue designers or decorators that they didn't like.

Good points.  I also think it seems things have improved due to this graffitti, therefore you could probably prove on some level that there is no destruction at least, if not prove an actual benefit.  I guess if that law exists for the artists rights, then I can see why they won this legal battle.

[lonestar]

I'm unsure as to whose side I'm on, but it does set a scary precedence for future cases, especially with a lot of inner cities being raised and renovated. Oakland is a perfect example of this.

[Stadler]

I was more or less surprised that the owner of the property could be penalized for doing whatever he wanted to with his own property? I mean, he owns the property? If he wants to tear it down, paint it...burn it....blow it up, as long as it's legal he should be able to do whatever he wants without being sued.

I can't open the article here, but was this a historical or a protected district? There are tons of homes in Litchfield CT that, despite being owned, need approval before anything can be done to them. Want to change your windows or hedges in front? You need the town's approval. The town dictates the color of your house, exterior lighting, etc..

Not just Litchfield; all over Connecticut.   I can remember  wanting to demo a building in RI while I was working for GE; we got permission to demo the BUILDING, but not the brick façade. So we had to either keep the building, or demo everything and try to keep a 200 foot by roughly 40 foot unsupported brick wall upright (NOT).  If the art falls into that category, fair play, but there are other questions too (note that I can't see the article, and haven't googled it on my own yet):  did the artist trespass?  This is one of those cases where if you strictly apply the law, it could be bad for BOTH sides.  The owner may not be able to demo the building, but the artist may be culpable for other things. 

[Adami]

From what I read, the artist had permission from the owner at the time. This is a new owner.

[bosk1]

I don't have time to look up what the law actually is and how it is applied.  But if that law in question says that, in this specific case, the city, county, state, and/or artists own the art, then it isn't nearly as cut-and-dried as "the landlord owns the property."  It is more a case of, "the landlord jointly owns the property in conjunction with the city/county/state/artists."  And if that is the case (and it seems that it is, or something analogous to that), then, no, the part-owner of the building does not have the right to do whatever he pleases with it unless he gets the consent of the other part-owner(s). 

Property easements, intellectual property, and other less tangible property rights are sometimes harder to visualize for most of us that don't deal in those realms every day.  But those rights are just as real.  Think of it this way:  If you and I bought a building together where we each owned half of it, we would be joint owners.  Assume I have a bunch of other stuff that I have bought in the building.  Now assume you decide to sell it off for just the value of the building, and you keep it all for yourself, AND I don't get reimbursed for all my stuff, which is now gone.  I have every right to come after you legally because you didn't have the sole right to the building and had no right to my stuff that was in the building.  In the eyes of the law, this situation appears to be VERY similar to what was going on with that building.  It may not feel the same because we are dealing with a very specific law, and with some intangible property rights.  But it really isn't that different.

[pg1067]

I have no idea whose side I'm on based on this article. An informed decision requires understanding what the law is, not a gut reaction based on personal feelings.

Nice to see someone else say this.

The opinion can be read here:  https://img.nyed.uscourts.gov/files/opinions/13cv5612.pdf (but it's 100 frickin' pages, so even I didn't read the whole thing).

As mentioned in the article, the relevant law is the the Visual Artists Rights Act, a 1990 addition to the Copyright Act, which appears in section 106A of the Copyright Act (https://www.law.cornell.edu/uscode/text/17/106A).

In pertinent part, the law provides that, subject to other provisions in the Copyright Act (in particular, section 113(d) - https://www.law.cornell.edu/uscode/text/17/113), the author of a "work of visual art" has the right "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."

A "work of visual art" is (among other things) "a painting, drawing, print, or sculpture, existing in a single copy."

The term "work of recognized stature" is not defined in the statute.  The court relied in a prior case that held that a "work of recognized statute" is a work that "(1) . . . has ‘stature,’ i.e. is viewed as meritorious, and (2) . . . this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.”

Section 113(d) covers graffiti (although that term isn't used).  It says that, if a work of visual art has been made part of a building such that removing the work will destroy the work, the author's rights under section 106A do not apply if the author consented to the installation of the work in the building either before the effective date of the Visual Artists Rights Act (i.e., 1990) or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.

Based on all of this, it sounds like a legally correct ruling as long as (1) the graffiti was a "work [or works] of recognized stature" and (2) the section 113(d) exception doesn't apply.  My personal opinion is that the "test" for what is or isn't a "work of recognized stature" is incredibly squishy and creates serious potential First Amendment problems.  Even if it's a legally correct ruling, I think it's a really dumb result, but the moral of the story is that building owners need to get rid of graffiti quickly -- i.e., before it becomes a "work of recognized stature" -- or risk being stuck with it.  I will be fairly surprised if the Second Circuit doesn't find a way to overturn this decision.

[lonestar]

My personal opinion is that the "test" for what is or isn't a "work of recognized stature" is incredibly squishy and creates serious potential First Amendment problems.  Even if it's a legally correct ruling, I think it's a really dumb result, but the moral of the story is that building owners need to get rid of graffiti quickly -- i.e., before it becomes a "work of recognized stature" -- or risk being stuck with it.  I will be fairly surprised if the Second Circuit doesn't find a way to overturn this decision.

My thoughts exactly, and stated much more eloquently.

[El Barto]

I will be fairly surprised if the Second Circuit doesn't find a way to overturn this decision.

Why? The second strikes me as a court that'll value the rights of the artist, so I don't see them seeking out ways to shoot the lower court down. Is there some flaw in the ruling that would cause an impartial appellate judge to vacate it?

[pg1067]

I will be fairly surprised if the Second Circuit doesn't find a way to overturn this decision.

Why? The second strikes me as a court that'll value the rights of the artist, so I don't see them seeking out ways to shoot the lower court down. Is there some flaw in the ruling that would cause an impartial appellate judge to vacate it?

It obviously depends on the composition of the panel that hears the case, but I have a feeling it will be a result driven ruling either way.  If they want to affirm it and endorse the "test" for what is and isn't a "work of recognized stature" (a "test" which arose out of a district court ruling, so it's hardly the sort of authority that's invulnerable to attack), they can easily do so.  On the other hand, if they want to reverse it, it won't be difficult to do.  The only "flaw" I saw in the legal reasoning relates to this "test," which, as I mentioned, essentially puts judges and juries in the position of art critics, which is something that federal courts (and the Second Circuit in particularly) has been historically loathe to do.  Beyond that, as I also mentioned, I didn't read the entire ruling, so I don't know if there are issues of how the law was applied to the facts of the case that might make the ruling susceptible of reversal.  The other option, of course, would be a settlement such that the district court's opinion is the only authority left on the books.

[El Barto]

I will be fairly surprised if the Second Circuit doesn't find a way to overturn this decision.

Why? The second strikes me as a court that'll value the rights of the artist, so I don't see them seeking out ways to shoot the lower court down. Is there some flaw in the ruling that would cause an impartial appellate judge to vacate it?

It obviously depends on the composition of the panel that hears the case, but I have a feeling it will be a result driven ruling either way.  If they want to affirm it and endorse the "test" for what is and isn't a "work of recognized stature" (a "test" which arose out of a district court ruling, so it's hardly the sort of authority that's invulnerable to attack), they can easily do so.  On the other hand, if they want to reverse it, it won't be difficult to do.  The only "flaw" I saw in the legal reasoning relates to this "test," which, as I mentioned, essentially puts judges and juries in the position of art critics, which is something that federal courts (and the Second Circuit in particularly) has been historically loathe to do.  Beyond that, as I also mentioned, I didn't read the entire ruling, so I don't know if there are issues of how the law was applied to the facts of the case that might make the ruling susceptible of reversal.  The other option, of course, would be a settlement such that the district court's opinion is the only authority left on the books.

Shirley this "test" has already been tested, though, right? Moreover, while I get the dislike of subjective measures in the legal world, this would hardly be the first to withstand scrutiny. The Miller test isn't exactly an objective thing, and it's a key first amendment standard.

[Ben_Jamin]

This says a lot

"The artists had once hoped to buy the properties, before their value soared to over $200 million."

Man that would suck butt. Wanting to buy the property so your work can stay, but then said work raises the value of building.

I agree with the ruling.

[Cool Chris]

Can't comment on the item at hand, and apologies for the tangent, and ensuing hatred, but goddamn do I hate graffiti and the scum that feel it is their place to deface public and private property. Assholes tagged the fence in our community, and the police said we need to erase it fast, because it just means someone is "marking their territory." So $100 later, it is gone. If I drove by and saw someone doing that in real time, it would be a struggle not to drive right over them.

[cramx3]

  I guess I don't have any personal experience with graffiti to have it bother me.  But yea, I'd not be happy if someone drew on my property... of course unless it lead to me making lots of money by selling that property or something.  There's definitely some cool stuff out there though like this I found near San Fran that does make me appreciate the art of it:

[Ben_Jamin]

And most of the graffiti on that building was cool stuff like that. That is art. What you see the hooligans doing is Tagging. Which isn't art. I respect the artwork if its awesome and good. We have a cool Garage in town that has Mario on it.

[Stadler]

That's all in the eye of the beerholder, though isn't it?   And I'm with Cram (I think); I don't really care if it's the Mona Lisa, if I own the property, it's my call (talking about other cases not the one in the OP). 

[Grappler]

And most of the graffiti on that building was cool stuff like that. That is art. What you see the hooligans doing is Tagging. Which isn't art. I respect the artwork if its awesome and good. We have a cool Garage in town that has Mario on it.

That's the crux of the argument - graffiti artists may be great artists, but their medium is OTHER PEOPLE'S PROPERTY.  It's one thing to have a big community mural painted on a building, with the owner's and city's approval, for the benefit on the neighborhood.  It's another for someone to paint something on a building and expect to have some artistic rights when they don't own the structure that it was painted on.

So I definitely side with the building owners in this case, despite some arcane law that allows the artist to have their work protected. 

[Chino]

And most of the graffiti on that building was cool stuff like that. That is art. What you see the hooligans doing is Tagging. Which isn't art. I respect the artwork if its awesome and good. We have a cool Garage in town that has Mario on it.

I got banned from an art subreddit for trying to have this discussion. I was making the argument that there is a difference between art and territorial piss. The members of that group didn't like that.

[El Barto]

So for the folk siding with the building owner, why the hell didn't he ask his lawyer bout the artwork? My hunch is that you don't buy 200 million dollars of property without legal representation. The subject of the graffiti never came up? Understand the situation you're getting yourself into and plan for it. If he's paying 200 mil for the land, isn't it reasonable to set aside a few for the artists if the need should arise? Or work into the deal an agreement with the previous owner to CYA? Or do an evaluation to determine if the graffiti is a good thing for the bottom line? Before we start shedding tears for the developers maybe we should consider if they did their due diligence, because it appears they didn't.

[Grappler]

So for the folk siding with the building owner, why the hell didn't he ask his lawyer bout the artwork? My hunch is that you don't buy 200 million dollars of property without legal representation. The subject of the graffiti never came up? Understand the situation you're getting yourself into and plan for it. If he's paying 200 mil for the land, isn't it reasonable to set aside a few for the artists if the need should arise? Or work into the deal an agreement with the previous owner to CYA? Or do an evaluation to determine if the graffiti is a good thing for the bottom line? Before we start shedding tears for the developers maybe we should consider if they did their due diligence, because it appears they didn't.

I agree and really have no comment on this specific instance.  If you're buying a building, you need to address this type of stuff in your due diligence.  The owners likely felt that it was just graffiti and didn't look into any laws concerning it's protection. 

My opinion is just a fundamental belief that graffiti is vandalism, period.  It may look pretty, it may be great art, and the people that do it obviously have talent.  But the point is that you've created art on something that you do not own, and therefore, should not have any rights to its ownership or protection - unless there is an agreement in place for you to create it (ala a building mural, where all parties approve of its creation).

[El Barto]

So for the folk siding with the building owner, why the hell didn't he ask his lawyer bout the artwork? My hunch is that you don't buy 200 million dollars of property without legal representation. The subject of the graffiti never came up? Understand the situation you're getting yourself into and plan for it. If he's paying 200 mil for the land, isn't it reasonable to set aside a few for the artists if the need should arise? Or work into the deal an agreement with the previous owner to CYA? Or do an evaluation to determine if the graffiti is a good thing for the bottom line? Before we start shedding tears for the developers maybe we should consider if they did their due diligence, because it appears they didn't.

I agree and really have no comment on this specific instance.  If you're buying a building, you need to address this type of stuff in your due diligence.  The owners likely felt that it was just graffiti and didn't look into any laws concerning it's protection. 

This is probably correct. And it cost them. I'm not sympathetic.

My opinion is just a fundamental belief that graffiti is vandalism, period.  It may look pretty, it may be great art, and the people that do it obviously have talent.  But the point is that you've created art on something that you do not own, and therefore, should not have any rights to its ownership or protection - unless there is an agreement in place for you to create it (ala a building mural, where all parties approve of its creation).

Which was the case here. It was not vandalism.

[gmillerdrake]

My opinion is just a fundamental belief that graffiti is vandalism, period.  It may look pretty, it may be great art, and the people that do it obviously have talent.  But the point is that you've created art on something that you do not own, and therefore, should not have any rights to its ownership or protection - unless there is an agreement in place for you to create it (ala a building mural, where all parties approve of its creation).

totally agree with this.

[Ben_Jamin]

So for the folk siding with the building owner, why the hell didn't he ask his lawyer bout the artwork? My hunch is that you don't buy 200 million dollars of property without legal representation. The subject of the graffiti never came up? Understand the situation you're getting yourself into and plan for it. If he's paying 200 mil for the land, isn't it reasonable to set aside a few for the artists if the need should arise? Or work into the deal an agreement with the previous owner to CYA? Or do an evaluation to determine if the graffiti is a good thing for the bottom line? Before we start shedding tears for the developers maybe we should consider if they did their due diligence, because it appears they didn't.

That is also true. I couldn't tell from the article, if he bought it from an old owner whom let the artists paint his building. Isn't it the new owners fault for not doing what you posted. The new owner should've known the background and history of said building.

Theirs just too much not known to really make an honest decision from me. But based on what was in that article, I side with the judge.