$6.7 Million awarded to artists in suit against landlord

by Keith Gross on Aug. 14, 2018

 General Practice 

Summary: How to protect yourself from claims under VARA (Visual Artists Rights Act of 1990): Recently a case was decided in New York in which a commercial building owner and landlord was ordered to pay his tenant and the tenant’s guest artists $6,700,000.

How to protect yourself from claims under VARA (Visual Artists Rights Act of 1990):

Recently a case was decided in New York in which a commercial building owner and landlord was ordered to pay his tenant and the tenant’s guest artists $6,700,000 after the building owner painted over graffiti art applied to the building.

The key issue at play is the Visual Artists Rights Act, 17 U.S.C. § 101 et seq.  The Visual Artists Rights Act of 1990 provided artists with a host of rights aimed at protecting their works from misattribution or destruction and sought to secure title to those works for the artist even if that work is applied to another’s property.

In this New York case, the property owner permitted graffiti artists to paint the exterior of a commercial building and years later when the building owner planned to tear down the building as part of a larger real estate development project, the artists sued to prevent the destruction of “their art“.  The building owner then painted over their art on the exterior walls of his building and was sued by the artists for destroying their work which resulted in the large damage award discussed above.

This case should serve as a cautionary tale for landlords everywhere who can avoid these sorts of issues with properly drafted language in their lease agreements.  While our firm skillfully litigates on behalf of clients, as well drafted lease used in a transaction from the beginning can often make litigation unnecessary.  Our commercial leases include language directed at rights gained through US Copyright law to prevent this type of event.  In this case, if the Landlord’s attorney had inserted specific language into the lease anticipating this matter, the landlord would have had full ownership rights to the art painted on the exterior walls of his building and the artists would have had no case.

Before entering into any sort of agreement, including a commercial lease, it is a good idea to get advice from a skilled attorney in advance.  A quick discussion with your attorney can ensure that you’re going in the right direction and can highlight any risks ahead.  We work with our clients to move their business interests forward while keeping an eye on the practical requirements to turn a profit.  We understand that not every situation requires extensive lawyering and can vary the level of complexity as required to meet your business objectives.

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