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Court Destroys Future Public Art Installations By Holding Building Owner Liable For Destroying This One

from the no-good-deed-goes-unpunished dept

Last week was a big week for dramatically bad copyright rulings from the New York federal courts: the one finding people liable for infringement if they embed others' content in their own webpages, and this one about 5Pointz, where a court has found a building owner liable for substantial monetary damages for having painted his own building. While many have hailed this decision, including those who have mistakenly viewed it as a win for artists, this post explains why it is actually bad for everyone.

The facts in this case are basically this: the owner of a run-down, formerly industrial building in a run-down neighborhood aspired to do something to redevelop his property, but it would be a few years before the time would be right. So in the meantime he let some graffiti artists use the building for their aerosol paintings. The building became known as 5Pointz, and the artwork on it soon began to attract attention. The neighborhood also began to change, and with the improvement the prospects for redeveloping the property into residences became more promising. From the outset everyone knew that redevelopment would happen eventually, and that it would put an end to the arrangement since the redevelopment would likely necessitate tearing down the building, and with it the art on the walls. As the date of demolition grew closer, the artists considered buying the building from the owner in order to prevent it from being torn down and thus preserve the art. However the owner had received a variance that suddenly made the value of the property skyrocket from $40 million to $200 million, which made the buyout impossible. So the artists instead sued to halt the destruction of their art and asked for a preliminary injunction, which would ensure that nothing happened to the art while the case was litigated. But in late 2013 the court denied the preliminary injunction, and so a few days later the building owner went ahead and painted over the walls. The painting-over didn't end the litigation, which then became focused on whether this painting-over broke the law. In 2017 the court issued a ruling allowing the case to proceed to trial on this question. Then last week came the results of that trial, with the court finding this painting-over a "willfully" "infringing" act and assessing a $6.7 million damages award against the owner for it.

It may be tempting to cheer the news that an apparently wealthy man has been ordered to pay $6.7 million to poorer artists for damaging their art. True -- the building owner, with his valuable property, seems to be someone who potentially could afford to share some of that wealth with artists who are presumably of lesser means. But we can't assume that a defendant building owner, who wants to be able to do with his property what he is normally legally allowed to do, will always be the one with all the money, and the plaintiff artist will always be the one without those resources. The law applies to all cases, no matter which party is richer, and the judicial reasoning at play in this case could just as easily apply if Banksy happened to paint the side of your house and you no longer wanted what he had painted to remain there. Per this decision, removing it could turn into an expensive proposition.

The decision presents several interrelated reasons for concern. Some arise from the law underpinning it, the Visual Artists Rights Act of 1990, an amendment to copyright law that, as described below, turned the logic of copyright law on its head. But there are also some alarming things about this particular decision, especially surrounding the application of high statutory damages for what the court deemed "willful" "infringement," that accentuate everything that's wrong with VARA and present issues of its own.

With respect to the law itself, prior to VARA the point of copyright law (at least in the US) was to make sure that the most works could be created to best promote the progress of the sciences and useful arts (as the Constitution prescribed). The copyright statute did this by giving creators economic rights, or rights designed to ensure that if there was money to be made from their works, they would have first crack at making it. The thinking was that with this economic incentive, creators would create more works, and thus the public interest goal of having more works created would be realized.

VARA changed this statutory equation for certain kinds of visual works. Instead of economic rights, it gave their creators certain moral rights, including (as relevant for this case), the right to preserve the integrity of their work. This right of integrity includes the right

(A) to prevent any intentional destruction, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Which may sound well and good, but as we see with the costly way the statute plays out, rather than creating economic incentives stimulating the creation of new works, it has now created economic effects inhibiting them, which in the long run will only hurt the artists VARA was intended to help.

The most obvious way it hurts them is by deterring property owners from allowing any art to be installed on their property, because it means that if they do, they may be forever stuck with it. Allowing art to be installed means they will either stand to lose the control they would have had without it (itself a hit to the property's worth), or potentially be faced with thousands if not millions of dollars in liability if they do what they want with their property anyway. And what property owner would want to chance such dire consequences in order to encourage art?

Granted, some of this risk can be ameliorated with written agreements, which were lacking in this case. But if all public art requires lawyered paperwork, it raises costs and will deter both artist and property owner from pursuing this sort of mutually beneficial arrangement. In this case the property owner had let the artists use his building to create, for free, by unwritten agreement simply because at the time they all agreed that it was good for both of them. It will not be good for creativity if we discourage this sort of symbiotic relationship from taking root.

It also will not be good for future artists whose economic interests might have benefited from other such opportunities like those 5Pointz offered. Even in this case the court noted all the evidence presented in "Folios", showing that being able to paint the building had opened up all sorts of doors for the artists to reap further economic rewards for their art. Artists will have fewer opportunities for that sort of career-enhancing exposure if landlords are deterred from giving it to them.

There is an implicit argument present in the plaintiffs' case that some of the rise in the value of the building was due to the artwork, and that it would therefore be just to share some of that windfall with them. But by this same logic, the building owner would have been similarly responsible for, and thus entitled to a portion of, the rise in value of the work of the artists whom he had allowed to exhibit. It would not be good for artists in the long run if they should find themselves needing to share their good fortune with their benefactors – or be potentially liable for any loss in their property value, should the presence of their work diminish it.

This case also stands to have some directly chilling effects on artists. While this case is not about graffiti artists suing each other for painting over each other's works (as the court noted, up to now graffiti artists have routinely painted over each others' works without any more severe penalty than social approbation, if even that), it's not clear why, if the decision stands, the next case couldn't be. The decision found that a VARA claim could be vindicated regardless of whether a work was temporary or permanent, and instead focused on whether a work had achieved the stature needed to be entitled to protection under the statute. It won't be good for artists if they have to fear being tied up in litigation with their peers due to the transient nature of their medium (or locked out of being able to create at all because others have already used all the good spaces first), or caught in a judicial cage match to determine whose work has the stature to be more deserving of protection.

It is possible that the court erred, and transient art falls outside VARA's purview. But there is enough ambiguity in the statute to potentially extend to it, and in any case, the statute's deterring effects would apply to all sorts of art, not just aerosol-painted art. Unfortunately at no point does the decision contemplate these effects, or its effects on other important policy values such as urban planning and affordable housing, if VARA is able to trump other forms of law, such as property law, that normally speak to what a building owner may do. The decision also largely ignores that the building owner had let the artists paint there in the first place, when he didn't have to. And it ignores that the building owner had done this apparently now wrongful painting-over of the art on his walls after this very same court denied an injunction that would have told him not to. None of these factors mattered to the court.

But all of them should matter to us, as should the extremely troubling way the court found his "infringement" (in other words, the painting-over) "willful," and thus subject to heightened damages. This is where the decision not only encapsulates the policy flaws of VARA, but also threatens to be seriously distorting to copyright doctrine (and other law) generally.

One troubling aspect is the punitive attitude by the court towards the building owner for having painted over the art after the very same court had denied an injunction preventing it. In between its order of November 12, 2013 denying the preliminary injunction, and its November 20, 2013 decision explaining its order (embedded below), the building owner had gone ahead and done the painting-over. This act appears to have outraged the court, whose November 20 decision reads more as an explanation for why it probably should have issued the injunction, now that in the intervening time the owner had painted over it.

As the court correctly observed in this 2013 opinion, preliminary injunctions exist so that courts can prevent irreparable harm at the outset that a court is likely to later rule needs to be prevented, if it would be too late to unring the bell at that point. In fact the language the court cited for the injunction is so standard that when the naked order denying the preliminary injunction was issued, it was perfectly reasonable for the building owner to presume that either (a) he was likely to win the case and be able to do what he wanted to the building, or (b) it wasn't such a severe harm if he removed the art now and later the court decided he shouldn't have, or (c) some combination of both. So it reads as a serious miscarriage of justice for the court's 2018 decision to punish him for going ahead and removing the art, or "recklessly disregard[ing] the possibility" that removing it would be wrongful, as the court put it.

Furthermore, if the court is right in its 2018 decision that the painting-over raised a valid VARA claim, then it was wrong to deny the injunction in 2013. Problematic though it is for VARA to introduce non-economic rights into copyright law, the whole point of one of them – the right to maintain the integrity of the work – can only be vindicated with an injunction. If this right were something that could be adequately compensated for by monetary damages, then it would start to look a lot more like an economic right. That's not what VARA was ever intended to create, but it is what the court effectively created back in 2013 when it refused the injunction and deemed monetary damages sufficient to address any harm should the VARA claim later prevail.

As it wrote in a confused passage in its 2013 decision:

Although the works have now been destroyed—and the Court wished it had the power to preserve them—plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings; and VARA—which makes no distinction between temporary and permanent works of visual art—provides that significant monetary damages may be awarded for their wrongful destruction. See 17 U.S.C. §§ 501-505 (providing remedies for VARA violations). In any event, paintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace. Here, the works were painted for free, but surely the plaintiffs would gladly have accepted money from the defendants to acquire their works, albeit on a wall rather than on a canvas.

It continued more bizarrely:

Moreover, plaintiffs’ works can live on in other media. The 24 works have been photographed, and the court, during the hearing, exhorted the plaintiffs to photograph all those which they might wish to preserve. All would be protected under traditional copyright law, see 17 U.S.C. § 106 (giving, inter alia, copyright owners of visual works of art the exclusive rights to reproduce their works, to prepare derivative works, and to sell and publicly display the works), and could be marketed to the general public—even to those who had never been to 5Pointz.

In the court's defense, it is correct that VARA does allow for infringements of moral rights to be compensated by monetary damages. But it shouldn't be the primary form of relief, and the court's punitive use of the highest amount of statutory damages to compensate the artists exemplifies why. Statutory damages are normally for when it is hard to measure economic loss and so we have to instead make some presumptions about how much compensation that loss deserves. There are already plenty of problems with these presumptions tending to allow for the recovery of far more than what actual losses would have been, but this decision magnifies their problematic nature by allowing statutory damages not only to overcompensate economic loss but to overcompensate non-economic loss. In other words, congratulations, we now have "pain and suffering" in copyright cases.

Perhaps in a way we always have – the overuse of statutory damages has always suggested that is really a retributive, rather than truly compensatory, damages measure. In this case, the court is perfectly frank that's what it's doing:

If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully. Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order.

But courts have always maintained the facade that compensation for emotional harm is unavailable in copyright cases. The 5Pointz court even acknowledges this limitation in footnote 18 of its 2018 decision:

Plaintiffs contend that they are entitled to damages for emotional distress. Under traditional copyright law, plaintiffs cannot recover such damages. See Garcia v. Google, Inc., 786 F.3d 733, 745 (9th Cir. 2015) (“[A]uthors cannot seek emotional damages under the Copyright Act, because such damages are unrelated to the value and marketability of their works.”); Kelley v. Universal Music Group, 2016 WL 5720766, at *2 (S.D.N.Y. Sept. 29, 2016) (“Because emotional distress damages are not compensable under the Copyright Act, this claim must also be dismissed.”). Since VARA provides damages under “the same standards that the courts presently use” under traditional copyright law, H.R. Rep. No. 101-514, at 21-22 (1990), emotional damages are not recoverable.

But the outright hostility the court repeatedly shows the defendant, in the language in both decisions, makes it clear that statutory damages are being used to compensate for what is otherwise a purely emotional harm. From the 2018 decision:

The whitewash did not end the conflict in one go; the effects lingered for almost a year. The sloppy, half-hearted nature of the whitewashing left the works easily visible under thin layers of cheap, white paint, reminding the plaintiffs on a daily basis what had happened. The mutilated works were visible by millions of people on the passing 7 train. One plaintiff, Miyakami, said that upon seeing her characters mutilated in that manner, it "felt like [she] was raped." Tr. at 1306:24-25.

There are good reasons why we do not allow copyright to remediate hurt feelings, not the least of which being that they are likely to run raw on both sides. From an article from last year (before the $6.7 million judgment):

Wolkoff feels betrayed by the artists he thought he was helping by lending them his wall to bomb. He cried when the building came down, he confessed, and said he would bring back more street artists to paint at the location after the renovation—just not those who sued.

Notably in its 2017 ruling (also embedded below) allowing the VARA claim to go forward, the court dismissed the artists' claims for intentional infliction of emotional distress, despite the strong emotions the case had engendered.

Because the defendants destroyed 5Pointz only after the Court dissolved its temporary restraining order and did no more than raze what they rightfully owned, the defendants simply did not engage in the kind of outrageous and uncivilized conduct for whose punishment this disfavored tort was designed.

And therein lies the rub: the building owner did no more than what other law clearly allowed. But by allowing artists to bring claims for the "intentional distortion, mutilation, or other modification . . . [of works that] would be prejudicial to [the artist’s] honor or reputation" the court has set up a direct conflict between VARA and what traditional copyright law, and traditional property law, have allowed. And it has done this without addressing any of the implications of this new policy collision.


Reader Comments

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  • identicon
    Anonymous Coward, 22 Feb 2018 @ 2:15pm

    On the bright side...

    On the bright side, this further supports creators' ability to weaponize copyright. See http://www.senrg.org/blued-trees/ wherein artists tried to use VACA to preserve public and private lands to prevent construction of natural gas pipelines.

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

  • icon
    JoeCool (profile), 22 Feb 2018 @ 2:24pm

    The easy solution

    There is an implicit argument present in the plaintiffs' case that some of the rise in the value of the building was due to the artwork, and that it would therefore be just to share some of that windfall with them. But by this same logic, the building owner would have been similarly responsible for, and thus entitled to a portion of, the rise in value of the work of the artists whom he had allowed to exhibit.

    Hmm - so send the artists a bill for rent on space for their art... say, $6.7M.

    ;)

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

    • identicon
      Bruce C., 22 Feb 2018 @ 3:03pm

      Re: The easy solution

      ...and next time write up a contract that signs over the VACA rights to the particular work, with whatever other terms the parties can agree to for copying, licensing, compensation and so on.

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

      • identicon
        Anonymous Coward, 22 Feb 2018 @ 3:43pm

        Re: Re: The easy solution

        ...and next time write up a contract that signs over the VACA rights to the particular work

        And if the artists don't sign it but paint anyway? The court said there's no distinction between temporary and permanent art. The thesis of this article was that it would deter "property owners from allowing any art to be installed"; but where's the support for the idea that permission had any bearing on it?

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

        • identicon
          Rocky, 22 Feb 2018 @ 5:59pm

          Re: Re: Re: The easy solution

          If someone paint something on your property without permission you get the artist for vandalism and and the punishment is to remove or paint over the art.

          Then you get the artist again by claiming that the cleanup is a breach of VARA.

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

    • identicon
      Anonymous Coward, 22 Feb 2018 @ 4:56pm

      Re: The easy solution

      Or send the artists a check for say 16 million for the pr that they brought to the building to allow you to get more floors or whatever the variance was that made it suddenly worth four and change as much(10% is a standard agent fee isn't it?)

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 2:24pm

    What I want to know, is if a court ordered the art to be preserved, would the artists have been ordered to compensate the owner for the fall in the value of their property caused by that order?

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

    • icon
      orbitalinsertion (profile), 22 Feb 2018 @ 2:44pm

      Re:

      I was thinking along the lines of, the artists may preserve their work by paying for special demolition to remove to another location the walls, at their own expense, and compensating any additional demolition costs that would impose on the property owner.

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

  • identicon
    Ben Goff, 22 Feb 2018 @ 2:47pm

    But courts have always maintained the facade

    Great. I'm off to paint shop to liven up some of those courthouse facades, and by this decision they won't be able to destroy them.

    Juvenile Court will seem less foreboding with some sick street-flash painted on the front.

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

  • identicon
    Boojum, 22 Feb 2018 @ 2:55pm

    I am not sure I agree with the premise of this story, that the developer did nothing wrong because it was his. If someone finds out they are being sued for the ownership of a car and it goes to court.. and the court doesn't explicitly say "Don't destroy the car" but they deliberately run it through a crusher in order to avoid judicial action then I think they have done something wrong. Please note, this is not a comment on the VARA act itself, but rather on the articles implication that the person "Just did something with their own property that they were entitled to do." He knew there was a court case about the status of the paintings, that the court case was moving forward (not dismissed), and chose to destroy the artworks.

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

    • icon
      An Onymous Coward (profile), 22 Feb 2018 @ 3:00pm

      Re:

      The injunction was dismissed which allowed the owner to do as he pleased with his property. If the pending destruction was foreseen to have an effect on the possible outcome of the case then the injunction should not have been dismissed. It seems pretty clear that the owner was granted license to move forward with his plans.

      The car analogy isn't even a close comparison.

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

      • identicon
        boojum, 22 Feb 2018 @ 3:18pm

        Courts dim vue of people who try to end run

        I don't agree. Not issuing an injuction to prevent is not the same as giving license to do. Also, when the article says that "And therein lies the rub: the building owner did no more than what other law clearly allowed. But by allowing artists to bring claims for the "intentional distortion, mutilation, or other modification . . . [of works that] would be prejudicial to [the artist’s] honor or reputation" the court has set up a direct conflict between VARA and what traditional copyright law, and traditional property law, have allowed." that it ignores the fact that the artists were seeking to protect those same works "As the Law allows." By intentionally destroying the art before the case was complete, he denied them their lawful right to object to the artworks destruction in court as is granted to them in VARA.

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

      • identicon
        Anonymous Coward, 22 Feb 2018 @ 3:38pm

        Re: Re:

        If the pending destruction was foreseen to have an effect on the possible outcome of the case then the injunction should not have been dismissed.

        That's not how injunctions work. To issue one the court would have to decide there would be irreparable harm otherwise and that the artists are likely to succeed with their case. Probably the court was unsure of that last part, and was then convinced during the case.

        What you're talking about would be a declaratory judgment. The building owners didn't have one.

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

    • identicon
      Canuck, 22 Feb 2018 @ 3:28pm

      Re:

      And yet when asked to direct the owner to not touch the artwork, the court declined. This is all on the court, e.g. the judge who chose to do nothing.

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

      • identicon
        Pixelation, 22 Feb 2018 @ 5:01pm

        Re: Re:

        "And yet when asked to direct the owner to not touch the artwork, the court declined. This is all on the court, e.g. the judge who chose to do nothing."

        Not entirely true. From the decision regarding the injunction...

        "It did so by not interfering with
        Wolkoff’s desire to tear down the warehouses to make way for high-rise luxury condos,
        but cautioned that “defendants are exposed to potentially significant monetary damages
        if it is ultimately determined after trial that the plaintiffs’ works were of ‘recognized
        stature’”"

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

        • identicon
          Pixelation, 22 Feb 2018 @ 9:42pm

          Re: Re: Re:

          I have a new term for this. The "Gawker Effect". Ignoring what a judge says and getting hammered with a massive judgement.

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

  • icon
    deadspatula (profile), 22 Feb 2018 @ 3:01pm

    Before I see a wash of comments on how Techdirt just hates copyright, note the issues beign brought up. The court issued several contradictory decisions, which created a number of regulatory uncertainties. I could respect the decision today, if in denying a preliminary injunction the court had not implied that the destruction of the art wasn't a big deal. But the court stated today with it's verdict that the destruction WAS a big deal.

    The only upside is that, between that contradiction and the other contradictory statements and the clear statement that the award value was vindictive and punitive, the appeal should be pretty straight forward.

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 3:07pm

    wow. this story will have a chilling affect on other building owners who might have let local artists use a side of the building to show off their talent.

    bad, bad decision.

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

    • identicon
      Paul Brinker, 22 Feb 2018 @ 8:51pm

      Re:

      Its worse then that, if someone tags your building, they can then sue you for damages if you paint over the tagging based on the reading of this law.

      Even crazier, its with out regard to the content of what I paint, I could paint a snowman in a snowstorm and have enough standing the moment you paint over that.

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

      • icon
        Anton Sherwood (profile), 23 Feb 2018 @ 11:52am

        Snowmen v. Haddock

        I want to see the litigation when Albert Haddock paints over your snowman with a totally different snowman (perhaps making a lewd gesture) in a totally different snowstorm.

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

  • icon
    Anonymous Anonymous Coward (profile), 22 Feb 2018 @ 3:34pm

    Once again

    Copyright holders seem to have greater rights than the rest of us. That simply isn't true, and shame on the court for not recognizing that.

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

  • identicon
    anonymous, 22 Feb 2018 @ 3:35pm

    This will be overturned on appeal. And appeal the owner will.

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

  • icon
    Anonymous Anonymous Coward (profile), 22 Feb 2018 @ 3:38pm

    On the other hand...

    ...it appears to me that the mistake the property owner made was not allowing some vandals to destroy the 'artwork' prior to his painting over it. Then, does this mean that all graffiti removal is actually illegal destruction of some 'creative endeavor', even if that 'creative endeavor' is destroying someone else's property?

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 3:47pm

    Graffiti is against the law, graffiti is protected by the law. I'm so confused. Am I allowed to spray-paint "School iz 4 fools" on the local buildings or not?

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

    • identicon
      Michael, 23 Feb 2018 @ 5:49am

      Re:

      You can be fined for vandalizing the building, but then they cannot remove the vandalism without your permission.

      I am pretty sure that this also means that if I walk up to someone and draw on them with a marker, I can sue them when they take a shower to wash it off.

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

      • identicon
        Anonymous Coward, 23 Feb 2018 @ 8:45am

        Re: Re:

        Make sure to get the court to issue an injunction preventing them from washing off the mustache you drew on their face so they have to show up to court with it on.

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

  • icon
    Killercool (profile), 22 Feb 2018 @ 5:14pm

    What about the property owner's right as an artist?

    His art was a protest piece entitled "What's mine is mine."

    The judge has demeaned his work as an artist, he should sue the judge for libel.

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 5:42pm

    New copyright Trolling opportunity

    Has anyone told John Steele about this law??? This is a rock solid money-maker.

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 5:48pm

    I shall paint over a rail car, the sue the railroad when they move my creation without my permission.

    New York Courts, where is my money!!!

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 5:49pm

    I shall paint over a rail car, then sue the railroad when they move my creation without my permission.

    New York Courts, where is my money!!!

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 6:08pm

    So is this the comeback of graffiti covered subway cars ?

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

  • icon
    Toom1275 (profile), 22 Feb 2018 @ 7:08pm

    So call your undefaced wall a piece of art titled Blank and then be able to get copyright-amplified damages if you can catch any graffit-ists?

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

  • identicon
    stine, 22 Feb 2018 @ 8:50pm

    I think he should appeal

    And use this to make the argument that he was actually just creating new art:

    https://www.bloomberg.com/view/articles/2014-11-14/why-pay-15-million-for-a-white-canvas

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 10:54pm

    Originalist Interpretation

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    Says nothing about paintings, sculpture or whittled wood. Just need an originalist judge to throw it out, get it appealed to the Supreme Court and have the conservatives throw it all out. Nothing but the written word and inventions. Would solve a whole host of problems.

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

  • icon
    That One Guy (profile), 22 Feb 2018 @ 11:07pm

    'It WAS your building. Then I tagged it and now I have ownership rights too.'

    It also will not be good for future artists whose economic interests might have benefited from other such opportunities like those 5Pointz offered. Even in this case the court noted all the evidence presented in "Folios", showing that being able to paint the building had opened up all sorts of doors for the artists to reap further economic rewards for their art. Artists will have fewer opportunities for that sort of career-enhancing exposure if landlords are deterred from giving it to them.

    Door which have now been slammed firmly shut, locked, and barred. With a ruling like this on the books a property owner would have to be insane to allow anyone to graffiti anything they own, no matter what it was and whether or not it was being used.

    If people can be sued for $6.7 million for the heinous crime of painting their own building then it is simply not worth the risk, and the would-be-artists can stick to spray-painting their own houses if they are feeling creative.

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

  • identicon
    oliver, 23 Feb 2018 @ 1:56am

    Cue Miley Cyrus: ... I came in like a wrecking ball...

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

  • identicon
    Anonymous Coward, 23 Feb 2018 @ 2:20am

    where the fuck do you find these fucking idiot judges? they must come free with a pack of breakfast cereal, surely!!

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

  • identicon
    Anonymous Coward, 23 Feb 2018 @ 7:47am

    I have a signed tattoo on my leg;

    what happens when I have to have my leg amputated?

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

    • icon
      Anonymous Anonymous Coward (profile), 24 Feb 2018 @ 5:01pm

      Re: I have a signed tattoo on my leg;

      Well, you could have your amputated leg serviced by a taxidermist. Whether that is legal may be of some contention. That still leaves the contention of who owns the leg? You, the taxidermist, or the tattoo artist that signed the leg? It might be contended that you own the leg, the taxidermist owns the 'embalmed leg', but the tattoo artist owns the artwork. How to divide? Could be a transcendent legal case. Never mind the surgeon who removed the leg and claims salvage rights.

      Got the bucks?

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

  • identicon
    Anonymous Coward, 23 Feb 2018 @ 8:04am

    It's almost as if it's impossible to preserve graffiti art, which is naturally an ephemeral art form, short of taking a photograph of the piece. What a shocker.

    It's not as if the building owner didn't give them advance notice of his intention to renovate and repaint - they'd filed a court case and had an injunction to stop the renovations denied. They should have had plenty of time to take archival photos of the pieces if they'd wanted.

    Also, it's graffiti. They weren't commissioned pieces, so by definition it's art that could potentially be defaced and painted over at any time by a property owner.

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

  • icon
    NaBUru38 (profile), 23 Feb 2018 @ 5:01pm

    So if you demolish your own building and it has a graffiti, you are a criminal?

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

  • identicon
    Anonymous Coward, 25 Feb 2018 @ 12:57pm

    Abolish Copyright

    It was a bad idea to start with.

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


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