By Catherine Revland
Last month, when the art world learned that Federal District Court Judge Frederic Block had awarded maximum damages totaling $6.7 million to 21 aerosol artists whose work had been destroyed by a developer, the response was laudatory: “This will change perceptions of an art form for generations to come;” “A milestone for street art;” “The quality of a work is determined by its dollar value in the marketplace, so this is a monumental victory.”
The significance of this case is not limited to the amount of damages. It is also the first time the Visual Artists Rights Act of 1990 (VARA) has been litigated in a jury trial, providing case precedence for future lawsuits. The Act grants artists “moral rights” to protect works of “recognized stature,” and the right to sue for damages if they are destroyed, even if the works are owned by someone else.
“VARA is a very difficult statute to understand,” Judge Block said in a recent interview. The issue of Recognized Stature is particularly important, as its definition in VARA is not clear. Renee Vara, curator, contemporary art historian, and an expert witness at the trial, gives another reason for the significance of this case. (Renee’s surname is unrelated to the statute.) “Not only had VARA never gone to court [but] no artist or art expert had ever attempted to testify to what ‘Recognized Stature’ is and how it should be measured.”
One of the challenges Vara faced was that the esthetic value of a work can easily get lost in translation within a court setting. “As an expert witness, I was asked to define what would constitute ‘Recognized Stature’ in art-world terms and whether each work reached that status in my opinion. These works were not illegal; they were ‘permission pieces.’ I testified for nearly 10 hours, prepared over 400 exhibits for the court, and submitted about a thousand pages of art expert analysis on each and every work.”
For nearly three weeks, the judge and jury listened to testimony from Vara as well as artists and other art experts, showing how the works were examples of urban art of the highest caliber. “I believed wholeheartedly in our case, and that the art, when looked at for its cultural value, would speak for itself and to the jury.” Were they successful? The court’s ruling that 45 out of the 49 exhibits met the VARA standard of Recognized Stature speaks for itself.
Another challenge was the ephemeral nature of the art form. 5Pointz, once a massive Long Island City warehouse, was where aerosol art came of age. The building was demolished to make room for luxury residential towers, but millions of people viewed the murals on its exterior walls from the elevated 7 Train, and millions more saw them as a backdrop in the hit movie Now You See Me. These exposures surely must validate the “recognized” requirement in VARA, but did the statute’s protections extend to temporary works of art? Judge Block addressed the issue in his 50-page decision: “If Picasso painted “Guernica” on a wall, it would still be a work of recognized stature, whether it was in a museum or on a wall.”
While discussing this issue in a recent interview, the judge recalled a moment during the trial when an artist was testifying: “He was asked, ‘Why would you paint on a wall knowing that it can be painted over or eventually be destroyed?’ The substance of his answer was: If a piece was in a museum it would be in an exhibit for six weeks and it’s gone. The art at 5Pointz is the kind of art that’s here for all people to see—from the train, [by people] coming to visit, children touching the walls. It’s a vehicle to expose the public to art in a much more significant fashion and in a broader way than if it was just housed in an institution for a short time. The fact that it might not be preserved is a whole different issue, but at least the public is exposed to this extraordinary art form in ways that would never have happened if it was confined to a museum.”
In a February 2016 WestView interview with Michael D. Minichiello, Judge Block made a statement about the law as being “an engine for social change.” Asked to apply what he said two years ago to the 5Pointz case, he replied, “I stand by the quote, and here is an example of a situation where the artists and their lawyers were able to use the legal system in the courts to address the issue of whether art merits protection in our society under the law.”
Part two of this article will appear in the April 2018 issue of WestView.