Graffiti: Legal or Illegal?

In the rapidly changing world of Intellectual Property Law, street art protection is less commonly discussed than that of other innovative creations.  Street art is somewhat ambiguous in its meaning.  It is common to associate street art with the graffiti spray-painted tags on a building or subway.  However, actual street art is something created with more depth.  Legally, the distinction between permanent graffiti and art is permission.  Street art becomes vandalism when that permission to publicly paint is not granted.

Because of the complexity of public art, the amount of protection warranted to street art is unclear.  Graffiti law is not yet a legal practice; however, graffiti-related disputes have been stirring across the country.

In a case close to home, 5Pointz graffiti curators have been wrestling with building owners over their famous murals being torn down without notice in Long Island City, New York.
5Pointz, the outdoor art exhibition once praised as an international “graffiti mecca,” is undergoing construction as it transforms into two residential high-rises with luxury apartments.
Strikingly, the apartments will keep the 5Pointz name.  The newly constructed buildings will showcase street art-style decorations in memory of the destroyed exhibit, much to the dismay of original 5Pointz artists.  The building may even display replicas of 5Pointz if the artists grant permission.  That may be unlikely, though, considering their adversarial stance against the building owners.

The legacy of 5Pointz began with curator Jonathan Cohen in the early 1990s.

Nearly three decades ago, the site was merely made up of unused artist studios.  So, Cohen asked the building’s owners, Jerry and David Wilkoff, for permission to paint on the walls of the buildings.
After agreeing to the artist’s use, Cohen went to work and, over time, local and international artists joined him, turning the buildings into the colorful outdoor art exhibit it came to be known as over time.

The building owners were issued a permit on August 21, 2013 by the City Planning Commission to convert the 5Pointz buildings into high rise apartments.  On October 10, 2013, Cohen and other aerosol artists sued the owners of the buildings that housed 5Pointz to prevent their works’ destruction, asserting VARA (Visual Artists Rights Act) and common law tort claims in the Eastern District Court of New York.  In the case of Cohen, et al. v. G&M Realty, L.P., the court denied the artists’ request for injunctive relief.

Despite the suit, the 5Pointz artwork were quickly whitewashed in one night, erasing all artwork to allegedly prevent the property from being able to claim landmark status.  The artists accused the owners of deliberately whitewashing the art so rapidly in an attempt to sabotage their plan to get the building landmarked because they had already prepared over 20,000 landmark forms for submission to the Landmarks Commission that were collected during a rally several days before the destruction.  The stigma behind graffiti being an act of vandalism is blurred when building owners consent to having street art on their property, and then forcefully remove it without giving the artists an opportunity to preserve their work.

Twenty-three artists had accused Jerry Wilkoff of removing the murals without giving the artists a fair opportunity to remove and preserve their work, or even the minimum notice required by law.
In March 31, 2017, Senior District Judge Frederic Block ruled against the real estate Attorney developers, who made a motion to dismiss the artists’ third and final complaint.  Judge Bloc stated that: “For VARA, the plaintiffs would have no right to prevent 5Pointz’s destruction by its rightful and legal owner; hence, the plaintiffs’ “moral rights” to prevent another’s disposition of his property arise purely under VARA.  Because the plaintiffs’ conversion and property damage claims wholly depend on the viability of their VARA claim, the Court finds them to be fully preempted.”

This significant legal victory for the artists is meaningful for the entire art community because the judge is allowing the case to go in front of a jury who may be more sympathetic to the wronged artists than to the real estate owners and developers.


Cohen and his fellow artists asserted that their street art is protected under VARA, a federal act that grants visual artists limited rights over visual works of art they created but do not own, and thus they are entitled to monetary damages for the destruction of their visual works of art.
VARA offers limited protections to only visual works of art.  A “work of visual art” is:

Resource By : https://sewellnylaw.com/graffiti-legal-illegal