In New 5Pointz Decision, Second Circuit Concludes That VARA Trumps The Constitution

from the immoral-rights dept

A few weeks ago there was news that a developer in New York City was being forced to dismantle twenty already-built floors in the building he built too high. If only he had thought to let some graffiti artists paint the walls of these excess floors, because then he could never take them down…

I say that, of course, in response to other recent news from New York: the Second Circuit has upheld the awful decision by EDNY to sanction a building owner millions of dollars for daring to paint the walls of his own building. And, in doing so, the Second Circuit has illuminated, in stark relief, what an unconstitutional disaster the Visual Artists Rights Act of 1990 (VARA) is.

But before explaining why, first here's some background. This decision, in Castillo v. GM Realty L.P., is the latest in the litigation over "5Pointz." In brief, a developer owned a building in Brooklyn that he wasn't doing anything with, so he let some graffiti artists paint its walls. Eventually he decided that he wanted to do something else with his building, and in response the graffiti artists sued him under VARA, because his plans would cause those paintings that hadn't already been destroyed by the artists [see p. 4] to now be destroyed by him. The district court refused to enjoin the building owner, however, so he went ahead and painted over them. Upon learning of the painting over, the district court then immediately had non-enjoiner's remorse and got so angry at the building owner for doing what it had let him do that it threw the book at him. In fact, it was $6.7 million dollars worth of book it threw in punitive statutory damages, because how dare that building owner paint the building he owned after the court said he could.

The appeals court decision doubles-down on all the problems with the original district court decision we flagged before, including how catastrophic it is for the future availability of public art to subject those who allow it on their property to such expensive consequences. It makes true the saying "no good deed goes unpunished" and will ensure that few will ever be inclined to offer such favors ever again.

We also highlighted the manifest unfairness of punishing the building owner for doing something that the court had cleared the way for. This unfairness itself presents a constitutional infirmity, particularly in light of the enormous statutory damages award granted, and then upheld, to punish the building owner.

Ultimately, the district court concluded that it could not reliably fix the market value of the destroyed paintings and, for that reason, declined to award actual damages. […] Nonetheless, the court did award statutory damages. It determined that statutory damages would serve to sanction Wolkoff’s conduct and to vindicate the policies behind VARA. [p. 8-9]

Statutory damages are already constitutionally suspect, especially when they are so severely inflated above any actual measure of harm, as was the case here, and especially when they appear to be punitive in nature, as was also the case here, because they function as quasi-criminal sanction without all the due process protections a finding of criminal liability is supposed to require.

But that's not the only constitutional problem with VARA that the decision highlighted. The decision made clear that it also fails on equal protection and First Amendment grounds.

The major issue that the appeals court considered was whether the district court was right in upholding the VARA claim. The crux of that analysis hinged on whether the destroyed paintings qualified as a work of "recognized stature." If they did, then they were protected from destruction by VARA, whereas if they did not qualify, then they would get no extra protection. [p. 13]

But think about the implications of the law. It means that the right to special protection for one's expression is only available for some expression, and whether it gets that protection pivots on the content of that expression. Laws are not supposed to be able to favor or disfavor expression. Yet, as this decision carefully – if perhaps inadvertently – explains, that's exactly what VARA does.

Whether a work is of recognized stature, and thus entitled to additional protection, hinges on its "high quality, status, or caliber." [p.14]. Contrast this special protection with regular copyright protection, which applies to any original work of authorship of any statutorily-enumerated type (literary work, musical work, etc.) fixed in any tangible medium, regardless of that particular work's quality. In other words, bad paintings are just as eligible for basic copyright protection as good paintings. But in the case of VARA, the moral rights provision inserted into the copyright statute, it is only the good paintings that get this extra protection, because the bad ones will never be able to achieve that stature. ("The most important component of stature will generally be artistic quality." [p. 14])

Of course, whether a work is of good quality or not is a matter of opinion. So who gets to decide? The court recognized that the "personal judgment of the court shouldn't be the determinative factor." [p. 14]. Instead it deferred to "the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts." [p. 14].

But ratifying the subjective opinion of others as the basis upon which to dole out special legal protections is no better than the court making the determination on its own initiative. First, the decision of what opinions to credit is at best arbitrary, as was the case here, where the court deferred to an opinion of a presumed expert who had not even seen the works:

Nor do we see merit in Wolkoff’s criticism of the court’s decision to credit the artists’ experts. As is almost always the case where competing expert testimony is adduced, the trier of fact accepts one side’s experts over the other’s. Judge Block did so here and gave sound reasons for his choice. Renee Vara, the artists’ expert, testified to the high artistic merit of the 5Pointz art but also testified that she had not seen the works before their destruction and had assessed them on the basis of images. We see nothing wrong and certainly nothing clearly erroneous with this approach, one well within a district court’s broad discretion to accept or reject evidence. [p. 22]

But even to the extent that the opinion the court adopts reflects a true consensus, it still means that popular expression gets more statutory protection than less popular expression, which is not something the First Amendment permits.

Worse, it means that certain people end up with more rights than others. As the court expressly noted, "[A] 'poor' work by an otherwise highly regarded artist nonetheless merits protection from destruction under VARA." [p. 14] In other words, some artists of poor works will get this bonus protection, yet some will be denied it, which puts VARA in conflict with the equal protection clause, which forbids this sort of legal favoritism.

The facts of this case illustrate the problem. The aerosol paintings at 5Pointz were "curated" by Jonathan Cohen. Cohen chose which artists could paint, what they could paint, where they could paint, and how long the paintings could remain. Yet despite his outsized role in the creation of the paintings in question – or, indeed, because of this role ("When the curator is distinguished, his selection of the work is especially probative." [p. 25]) – the court deferred to him as someone whose opinion on the worth of a work could be dispositive in determining whether it deserved these extra legal protections.

Next, Appellants object to the district court’s reliance on Jonathan Cohen’s testimony about his curation of the artwork. The district court reasoned that Cohen’s selection process, which involved review of a portfolio of an artist’s work and a plan for his or her 5Pointz project, screened for works of stature. Appellants, however, contend that this determination was irrelevant because Cohen made his evaluation before the artists painted their 5Pointz works. Nonetheless, the district court cogently reasoned that a respected aerosol artist’s determination that another aerosol artist’s work is worthy of display is appropriate evidence of stature. An artist whose merit has been recognized by another prominent artist, museum curator, or art critic is more likely to create work of recognized stature than an artist who has not been screened. This inference is even stronger where, as here, Cohen reviewed a plan for the subject work before allowing it to be painted. Accepting and crediting such testimony easily falls within a district court’s trial management responsibilities and in this instance involved no abuse of discretion or clear error. [p. 23-24]

There is no constitutional problem with the fact that Cohen played kingmaker with respect to what artists he allowed to exhibit at 5Pointz and which works could attain any sort of visibility. As an individual he is entitled to make these content-based decisions. What is not okay is for the courts to allow his personal opinion to acquire the imprimatur of the state to create extra rights for his favorites. As the Second Circuit set forth, this power appears to be what VARA allows. But it's not what the Constitution permits.

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Filed Under: 2nd circuit, 5pointz, art installations, artwork, graffiti, moral rights, property rights, statutory damages, vara


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  • identicon
    Anonymous Coward, 6 Mar 2020 @ 12:46pm

    A few weeks ago there was news that a developer in New York City was being forced to dismantle twenty already-built floors in the building he built too high.

    ...bwuh?

    I can understand accidentally building a floor or two too high, but how in the world do you mistakenly build twenty freaking stories higher than is permissible?!?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 6 Mar 2020 @ 12:55pm

      Re:

      It is possible a deal for the air rights fell through.

      Yes in NYC you can sell off the unused space over your building to someone else who wants to build above the height they are allowed.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 9 Mar 2020 @ 12:34am

      Re:

      Corruption, I'd guess. Where I live in Spain was rife with similar things for a while - someone wanted to build on land that wasn't zoned for housing, but the right people were paid off to turn a blind eye. Years later, the corrupt people were gone, the illegal nature of the building was noticed and the buildings ordered to be demolished.

      A very bad situation for the unfortunate souls who bought apartments in those buildings, but there were acres of illegal buildings constructed before the financial crisis stopped the local housing boom here.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 9 Mar 2020 @ 3:22am

        Re: Re:

        "Years later, the corrupt people were gone, the illegal nature of the building was noticed and the buildings ordered to be demolished."

        Easier to obtain forgiveness than ask permission, eh? Even more so if the con men are long out of the business by the time the shenanigans get discovered.

        I'm suddenly reminded of the discovery that the walls of the world trade center were discovered to be made with far too little actual concrete to sand by the fact that a disaster was massively potentiated by the criminally shoddy engineering.

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 6 Mar 2020 @ 12:47pm

    'Paint on my walls? You get sued.'

    Oh, graffiti artists are just going to love this. If allowing someone to spray-paint your property means it's no longer your property then only the utterly insane will allow people to do so, with property owners almost certainly making clear that doing so is not only not condoned by will carry the harshest legal penalties they can bring in order to 'incentivize' would-be-artists to go elsewhere.

    The greedy schmucks who won this lawsuit may have gotten a nice payday thanks to an insane law and equally nuts judges, but in so doing they just stabbed every other graffiti artist in the back, and I can only hope that every property owner who is now going to be making very clear that no graffiti is allowed will point the now frustrated artists right at them as the ones responsible.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 6 Mar 2020 @ 1:07pm

      Re: 'Paint on my walls? You get sued.'

      And...if the government can stop you from painting over that graffiti, then they have 'taken' your rights to your own property. If I remember correctly the Constitution has a takings clause whereby the government needs to compensate the property owner at some form of fair market value for 'taking' that property.

      The government can then let anyone who cares to deface 'their' building. Of course then when a second graffiti artist comes along and defaces the first graffiti artists work, they can just duke it out...erm sue the government for not protecting their VERA protected works.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2020 @ 12:49pm

    It occurs to me that "vara" is Spanish for "rod". As in the thing that everyone involved in coming up with this terrible court decision ought to be beaten with.

    reply to this | link to this | view in chronology ]

    • icon
      Cathy Gellis (profile), 6 Mar 2020 @ 6:34pm

      Re:

      The weird thing is that the plaintiffs' expert's last name was actually "Vara." (Either that or the court made a weird typo in the decision...)

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 6 Mar 2020 @ 1:05pm

    This decision makes perfect sense in our world.
    Sony can install a rootkit & destroy your property to "protect" their IP.
    They can control how, where, when you can access the content you paid for.
    They can remove content you paid for on a whim to boost sales elsewhere.
    On a millisecond of data they can get the right to go trawling though your life, your families life, & people who visited your home. Courts accepted absence of evidence as evidence.
    We developed this new amazing technology!! IT WILL BE A SERIAL KILLER AND MURDER US IN OUR SLEEP!
    We looked at the law, we build a system that obeyed the law, the court ruled paying attention to the law meant we broke the law.
    Corporations air your viral clip & then claim they own it stopping you from being paid or being shown as the creator.

    Art can sooth the savage beast, but it shouldn't be given rights beyond actual live people. Just because a building got tagged is no reason to force the building owner to pay off the tagger before they can do anything with their property.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2020 @ 1:24pm

    This ruling only serves to reitify my contention how out of whack judges are today. I rest my case.

    reply to this | link to this | view in chronology ]

  • identicon
    princell pinochio, 7 Mar 2020 @ 3:50am

    dumb stupid american judge idiots

    how can anyone trump your ownership rights of your property. seriously people it belongs to someone and that someone says what goes with their property. kill the stupid vara law crap junk american idiocy junk.

    every one i know hates all americans except trump and his one big mac a day healthy diet. we are all emulating this king of kings.

    every other american should bow their heads to trump and his second coming.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Mar 2020 @ 9:37am

      Re: dumb stupid american judge idiots

      every one i know hates all americans except trump

      Everyone I know hates Trump and idiots who hate Americans just because they're American.

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 9 Mar 2020 @ 10:53am

      Re: dumb stupid american judge idiots

      The "idea" behind VARA is that just because you are the current owner, you can't destroy something that has value to society as a whole. For example, if you live in a historic building, many locales prevent you from remodeling it in ways that remove the historic significance. So you can't tear it down and replace it with a condo box.

      Similarly for works of art, you wouldn't want to live in some bizarro world where the Louvre could someday decide to destroy the Mona Lisa. Or as a more relevant example, some art that has stood in place for years and become part of the community's identity gets tossed because the landowner decides it's time to cash in and change the land use. There is an investment from the community and the artist in the property that isn't quantified or easily subject to compensation.

      The problem is how you can achieve this goal within the framework of the constitution. VARA doesn't seem like it works on two levels - first because of the need to arbitrate which works qualify for protection and second, because it doesn't help after the creator has passed on and copyright has expired.

      The other problem with this case is that it involves graffiti, which a lot of people equate to straight out vandalism.

      One thing that's glossed over in the story is that 5pointz had a classification system for ephemeral graffiti as well as a "permanent" collection much like an art gallery of works deemed to have significant merit. The owner painted over everything, without giving artists access to the building to recover these "permanent" works in one form or another. A big reason for the punitive/statutory damage award was because the owner was deemed to have acted maliciously to destroy the works while the case was still in progress. I'll reserve judgment whether part of this was the court covering its ass for not issuing an injunction in first place.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 7 Mar 2020 @ 1:06pm

    Any?

    Pictures, sample, Showing of the artwork??
    NOPE.
    How can they do this?
    In the first case they didnt tell him NOT TO PAINT, which is what the case was about..so no decision??

    reply to this | link to this | view in chronology ]

  • identicon
    vic, 7 Mar 2020 @ 3:18pm

    all the property owner had to do was wait 90 days , but he didnt follow judges orders and painted over the art . Dont we as property owner have to pull permits? even though you own the property you still have to follow the law.he broke the law.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Mar 2020 @ 6:53pm

      Re:

      About that...

      The district court refused to enjoin the building owner, however, so he went ahead and painted over them. Upon learning of the painting over, the district court then immediately had non-enjoiner's remorse and got so angry at the building owner for doing what it had let him do that it threw the book at him.

      ... unless the article author botched their summary or you've got some evidence they don't it certainly sounds like he didn't have to wait as the court initially gave him the go-ahead, and it was only after the fact that they decided to change their minds.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Mar 2020 @ 10:38am

      Re:

      Yep, the law required notice giving them a limited time to remove the art installations which could be removed, and his violation of the law was in not doing so much as, for example, if your business' landlord decided to waltz in to your offices one day and burn all your company's files.

      reply to this | link to this | view in chronology ]

  • identicon
    I Am The Decider, 8 Mar 2020 @ 10:36am

    If you don't like it when a panel of experts gets to decide what is and is not legitimate art, you're probably not going to like it when a panel of experts gets to decide what is and is not legitimate journalism. I won't necessarily miss Alex Jones, but I'll probably miss Mike Masnick.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 9 Mar 2020 @ 12:38am

      Re:

      "I won't necessarily miss Alex Jones"

      I sort of will. Not because I listen to his show, but because I listen to the Knowledge Fight podcast where they rip his shows apart - and it's endlessly entertaining, as well as informative.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2020 @ 7:46am

    I hope all business owners learn from this. Don't let anyone graffiti your building. You then lose your rights to your own building. Insides or Outside, just don't allow it.

    reply to this | link to this | view in chronology ]

  • icon
    Oninoshiko (profile), 9 Mar 2020 @ 7:15pm

    If anyone hasn't seen it, Leonard French has a video

    If anyone hasn't seen it, Leonard French has a video covering the original ruling. When I first saw this I was ready to side with the building owner, the facts of the case changed my mind.

    https://www.youtube.com/watch?v=WBOKhU8sLiY

    reply to this | link to this | view in chronology ]


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