Art-related copyright disputes, such as the case involving Cho Young-nam’s proxy artworks, continue to surface in courts. There are two major reasons for the rise in such lawsuits. First, the value of artworks has skyrocketed, art transactions have become more frequent, and public interest in art has grown substantially. As a result, disputes have increased due to the considerable economic value that now attaches to artwork or its usage. Second, the very concept of what constitutes art has shifted, particularly in contemporary art, making it difficult to define the boundaries of art itself. This change has sparked debates about what should be considered art. Moreover, copyright law is a complex area of law, with interpretations varying greatly depending on philosophical perspectives. Consequently, even experienced lawyers often find art copyright cases difficult and rife with controversy, leading to unpredictable outcomes. Given these factors, it is expected that art-related copyright disputes will continue to increase, with intense battles likely to be waged in court. While the general trend is toward protecting the rights of artists, the outcome of individual cases can vary.
A Notable Case in the U.S.
A noteworthy decision came from the U.S. in February 2018, when the federal court in New York issued a ruling concerning the removal of graffiti. A key issue in this case was whether graffiti qualifies as art protected under the Visual Artists Rights Act (VARA), and whether the act of “destruction” of the artwork also infringes the artist’s right to maintain its integrity. The right of integrity refers to an artist’s right to preserve the integrity of the work’s content, form, and title. It also includes protection from any harm that might affect the artist’s intellectual or spiritual integrity or the wholeness of the work. The right of integrity is part of moral rights, alongside the right of attribution and the right to disclosure. Moral rights grant an artist personal and spiritual rights over their creations, in contrast to economic rights, which safeguard financial interests derived from the use of the artwork.
Does the U.S. Strongly Protect Artists’ Rights?
Is the U.S. a country that broadly and strongly protects artists’ rights, particularly moral rights? The answer is both yes and no. Generally, U.S. laws and court precedents offer a narrow scope of protection for moral rights in art, with relatively low levels of protection. The philosophical stance and the significance of art in society greatly influence the level of protection granted. In the U.S. and the U.K., art has traditionally been seen as an object, rather than an extension of the artist’s identity, which has led to a more detached view of the relationship between artist and artwork. The concept of moral rights, which views art as a reflection of the artist’s identity, developed primarily in France, Germany, and Italy, and has been somewhat alien to the legal traditions of the U.S. and the U.K.
Nonetheless, as pop art, minimalism, and photorealism emerged in the 1960s and 1970s, art activity flourished in the U.S., backed by immense wealth. As a result, the U.S. became a major player in the global art market, competing for the top spot. When the Visual Artists Rights Act (VARA) was introduced in 1990, Congressman George Smith referred to it as “the most alien of all private property rights ever adopted by Congress.” Despite early challenges, court decisions in the latter half of the 20th century increasingly recognized and strongly protected moral rights for art developed during this period.
The Case of 5Pointz
The case in question involved the redevelopment of a site in Long Island City, Queens, known as ‘5Pointz,’ where building owner Jerry Wolkoff destroyed 45 graffiti artworks during the redevelopment process. For two decades, 5Pointz had been a global mecca for graffiti art, with artists flocking to spray-paint the walls of the building. However, when Wolkoff planned to convert the site into high-end residential buildings, he whitewashed the graffiti overnight and subsequently demolished the building. Twenty-one artists sued Wolkoff, claiming they would have had the opportunity to preserve the works through photographs or videos if they had been informed about the demolition in advance. Wolkoff argued that the artists knew their works were temporary and that the building would eventually be demolished.
Under the Visual Artists Rights Act, artwork that is integral to a building may be destroyed when the building is demolished, provided that certain procedures are followed. However, if no agreement is signed between the building owner and the artist regarding potential damage or destruction, the artist’s right to maintain the integrity of their work may still apply. VARA does not protect all artwork, only those deemed to have “recognized stature.” Unlike France and Germany, which protect all artwork, the U.S. adopts a more pragmatic approach in determining which artworks merit protection.
In this case, the key issue was whether the graffiti qualified as “recognized stature” artwork, and the court ultimately ruled that it did. The judge ordered Wolkoff to pay $150,000 per artist, totaling $6.75 million. Judge Frederick Block criticized Wolkoff’s arrogance, noting that if Wolkoff had waited 10 more months to demolish the building after obtaining approval, he would not have been found to have acted intentionally.
A Landmark Decision for Graffiti
This ruling, recognizing graffiti as protected artwork, is groundbreaking even in the U.S. Eric Baum, the artists’ attorney, praised the decision, stating that it demonstrated graffiti’s right to the same federal protection as any other form of art. This decision further confirms the U.S. trend toward stronger and broader protection of moral rights for artists.
Koo Bon-jin (Representative Attorney at Lawplex, Ph.D. in Law)
Quarterly Sculpture, April 2018