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Property Owners: What to Do When Your Building Gets Graffitied

Monday, August 13, 2018

While some forms of graffiti is straight vandalism, in the past few decades, graffiti has grown to be appreciated as street art, and spray painted slurs have morphed into masterpiece-style murals that can sprout overnight. But as a property owner, what do you do when you find your building has been marked?

And while graffiti can cost cities millions of dollars to clean up, recently, New York City courts awarded $6.7 million to graffiti artists who sued building owner Gerald Wolkoff in reference to the Visual Artist Rights Act (VARA).

That case opened up a whole litany of questions, says Timothy Kephart, founder of Graffiti Tracker (www.graffititracker.com). “Most importantly, is your property no longer your property to do with what you wish because people put graffiti on it?”

Kephart has four points for property owners to keep in mind regarding ownership and removal of graffiti art on their buildings:

Know if it’s legal or illegal street art. When acquiring, renovating or destroying property containing street art, Kephart says you should assess whether it’s “recognized stature,” thus making it protected by copyright law. “Though graffiti is often illegal, murals or other forms of street art may have been affixed with a previous owner’s permission,” Kephart says. “Also, it could have been placed illegally, but since has risen to recognized stature.”

Be aware of VARA-related issues. “If granting an artist permission to attach art to your property, you need a written agreement stipulating the artist waives their VARA rights,” Kephart says. “If acquiring a property with visual art that could be protected, you need to be well-versed in VARA.”

Court may be the only resort. If a street artist paints a building wall without permission, they still have VARA rights and the copyright. “However, the physical part of the building where the art was displayed remains the property of the building owner,” Kephart says. “Whether the owner has the right to remove and sell the work can require litigation.”

Separate new work from collective work. “It’s important to get a written agreement from an artist if the owner has commissioned the artist for a new work that’s part of a collective work,” Kephart says. “That separate work should be designated “work for hire,” which can eliminate a future VARA claim.”

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