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Author: Ellen Matthews
Date: Nov. 2021
From: William and Mary Law Review(Vol. 63, Issue 2)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 12,111 words
Lexile Measure: 2140L

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TABLE OF CONTENTS INTRODUCTION 646 I. BACKGROUND 650 A. Social Background 651 1. Street Art 651 2. Social Media, Street Art, and Advertising 652 B. Legal Background 654 1. Berne Convention of 1886 655 2. The Visual Artists Rights Act of 1990 656 a. VARA Protections 657 b. VARA Limitations 657 c. Remedies Under VARA 660 II. VARA'S AMBIGUITY INJURES BOTH STREET ARTISTS AND PROPERTY OWNERS 660 A. VARA Inadequately Protects Works Made for Hire 662 B. VARA Fails to Define Recognized Stature 663 III. A PROPOSED REFORM OF VARA 667 A. Eliminating Ambiguous Language 667 B. Developing a National Recording System of Street Art 670 IV. STRIKING A BALANCE BETWEEN EXPANDING AND CURTAILING ARTISTS' MORAL RIGHTS PROTECTIONS 673 A. Congress Should Expand VARA Protections to Include All Public Art 674 B. Congress Should Curtail VARA Protections of Public Art Placed on Private Property 675 CONCLUSION 677


Consider the following: Building Owner commissions Artist to paint a mural on the wall of his building. A decade later, Business buys that building from Building Owner and, unaware of details relative to Artist's wall mural, develops plans to renovate the building for a new use. Upon hearing of Business's attempt to alter its newly acquired property, Artist seeks an injunction to prevent Business from restoring its building in a way that would change or destroy her mural. (1) Would a court prevent Business from altering its building due to Artist's moral rights to her work? (2) If the court follows the Second Circuit's decision in Castillo v. G & M Realty L.P., the answer might be yes. (3)

The law of property, unlike that of contracts, provides individuals with a fixed and narrow range of rights. (4) In the civil law system, the limitation on individuals' property rights is known as numerus clausus. (5) Thomas Merrill and Henry Smith assert that property owners' right to exclude others from their property "must be regarded as a moral right." (6) Further, although the principle ofnumerus clausus is not explicitly recognized in the American common law system, common law courts "treat previously-recognized forms of property as a closed list that can be modified only by the legislature." (7)

By enacting the Visual Artists Rights Act (VARA) in 1990, Congress expanded artists' bundle of rights and guaranteed certain protections, including the right "to prevent any destruction of a work of recognized stature," although the statute does not further define "recognized stature." (8) In doing so, Congress perhaps unintentionally created an opportunity for street artists to promote their rights over and against those of real property owners. (9) This moral right opportunity made headlines in February of 2020 when the Second Circuit affirmed a $6.75 million judgment against a property owner, Gerald Wolkoff, after the trial court found he violated VARA by destroying artwork displayed on his property in retaliation against twenty-one plaintiff-artists seeking to preserve their works. (10)

Did Congress predict that a city's murals would draw tourists to that location, (11) or that street...

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Gale Document Number: GALE|A689725295