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.