Obscure Title Issue: Artists’ Rights
 
Ever hear of the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A? For all of us in the title insurance industry, VARA should be on the list of underwriting considerations whenever an artist has used a building as a canvas. If you happen to be underwriting a transaction involving a graffiti-laden abandoned building, VARA should be a consideration in the underwriting process.

VARA states in relevant part that the “author of a work of visual art” shall have the right: “(A) to prevent any intentional distortion, 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.” 17 U.S.C. §106A (a) (3) (A) & (B), and as cited in Phillips v. Pembroke Real Estate , 459 F.3d 128 (1 st Cir. 2006).   

Under the law, the artwork must be of “recognized stature,” a term that lacks a precise definition. On February 12, 2018, a federal judge relied upon VARA in awarding $6.7 million to the graffiti artists who painted murals at 45-46 Davis Street, Long Island City, Queens, NY. The building, renamed “5 Pointz” in 2002, was destroyed by the New York City developer/owner of the property who tore down the building to build condominiums. 

Katherine Craig, a muralist who painted on a building on East Grand Boulevard in Detroit, sued the developer under VARA to protect her work. In areas where redevelopment is hot and murals are common, VARA is a relevant wrinkle in the process. It is a twist on the standard rights of parties in possession exception that should be specifically enunciated when dealing with possible artists’ rights.