Under the Visual Artists’ Rights Act enacted by Congress in 1990, authors of qualifying works of visual art are given the rights of attribution and integrity in their works. The right of attribution gives the author the right to be identified as such, the right to prevent attribution to him of works that he did not create, and the right to prevent use of his name in connection with a work that has been modified in a way that will injure his honor or reputation. The right of integrity gives the author the right to prevent the intentional distortion, mutilation, or other modification of his work that would be prejudicial to his honor or reputation. For works of “recognized stature”, VARA provides the right to prevent intentional or grossly negligent destruction of the work.
Recently some graffitists and other creators of “illegal art” in public and private spaces have claimed the protections of VARA for their works with the result that it cannot be removed or altered by the persons in control of the property, whether public or private, without permission from the artist. In some situations, these claims have stalled property owners’ efforts at rehabilitation and clean-up projects while the parties argued in court. In other cases, particularly involving works of the popular street artist known as “Banksy,” owners have felt that their property was enhanced by the illegal art because the works added value to the building and viewers attracted to the works increased foot traffic in the vicinity.
Most courts have held that VARA does not apply to any work that is illegally placed on the property of others, without their consent, when the artwork cannot be removed from the site. However, the potential for legal protection of such works should cause anyone considering the destruction or significant alteration of any work of “street art” to pause and consider the possibility that it might be worth some extra effort to relocate the wall or other surface on which the work was created. There may be other options such as isolation and preservation of the work through a renovation process. In some situations, making appropriate efforts to contact the artist could result in obtaining consent to the alteration, which is as close as possible to a foolproof way to address any contingent liability.