14 J. Marshall Rev. Intell. Prop. L. [i] (2014-2015)
Who's the Vandal: The Recent Controversy over the Destruction of 5Pointz and How Much Protection Does Moral Rights Law Give to Authorized Aerosol Art

handle is hein.journals/johnmars14 and id is 340 raw text is: 

                            THE JOHN MARSHALL


                                        AEROSOL ART?

                               SUSANNA FREDERICK FISCHER


This paper considers the extent to which federal moral rights law protects authorized graffiti and aerosol art
against destruction, in the context of the controversy over the destruction of 5Pointz. 5Pointz, a sprawling
complex of warehouse buildings in Queens, was a Mecca for aerosol art. The buildings' owners ordered the
demolition of 5Pointz after the November 2013 order by New York federal district judge Frederic Block denying
the artists a preliminary injunction to stop destruction under the federal moral rights statute, the Visual Artists
Rights Act (VARA). This paper argues that Judge Block erred in finding that the transient nature of the aerosol
art at 5Pointz precluded injunctive relief under VARA. Judge Block failed to adequately take into account both
the statute's preservationist rationale and the non-economic nature of moral rights. Money damages will not
always adequately compensate artists for the destruction of aerosol artworks like those at 5Pointz. The paper
describes the creation of the aerosol art at 5Pointz and the moral rights litigation over its destruction, which
remains ongoing at time of writing. It shows that VARA was enacted for the purpose of preserving art because
of its social and cultural value. It contends that aerosol art such as that at 5Pointz is not barred from protection
under VARA as site-specific art. However, VARA only protects art that has achieved significant social and
cultural value in that it has recognized stature. Aerosol art can, as Judge Block correctly recognized, achieve
such recognized stature. However, Judge Block erred in finding that the transient nature of the 5Pointz aerosol
art disentitled it to preliminary injunctive relief. This approach failed to recognize the difference between
traditional economic copyright rights and VARA's non-economic moral rights. VARA's Building Exception
provides for a way to resolve the conflict between preserving artwork on buildings and private ownership rights
in those buildings. The transient nature of the art is not a factor under the Building Exception. Where artwork
cannot be removed from a building without damaging it, as is arguably the case for the 5Pointz art, the artist
has a moral right against destruction of art of recognized stature unless he has entered into a waiver
agreement with the building's owner. While VARA may sit uncomfortably with private property rights, judges
need to respect the balance between moral rights of artists and the rights of building owners set out in the
Building Exception.

                           Copyright c 2015 The John Marshall Law School

       Cite as Susanna Frederick Fischer, Who's the Vandal? The Recent Controversy over the
          Destruction of 5Pointz and How Much Protection Does Moral Rights Law Give to
             Authorized Aerosol Art?, 14 J. MARSHALL REV. INTELL. PROP. L. 326 (2015).

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