This paper considers the extent to which federal moral rights law protects authorized graffiti and aerosol art against destruction, in the context of the controversy over the destruction of 5Pointz. 5Pointz, a sprawling complex of warehouse buildings in Queens, was a Mecca for aerosol art. The buildings’ owners ordered the demolition of 5Pointz after the November 2013 order by New York federal district judge Frederic Block denying the artists a preliminary injunction to stop destruction under the federal moral rights statute, the Visual Artists Rights Act (VARA). This paper argues that Judge Block erred in finding that the transient nature of the aerosol art at 5Pointz precluded injunctive relief under VARA. Judge Block failed to adequately take into account both the statute’s preservationist rationale and the non-economic nature of moral rights. Money damages will not always adequately compensate artists for the destruction of aerosol artworks like those at 5Pointz. The paper describes the creation of the aerosol art at 5Pointz and the moral rights litigation over its destruction, which remains ongoing at time of writing. It shows that VARA was enacted for the purpose of preserving art because of its social and cultural value. It contends that aerosol art such as that at 5Pointz is not barred from protection under VARA as site-specific art. However, VARA only protects art that has achieved significant social and cultural value in that it has “recognized stature.” Aerosol art can, as Judge Block correctly recognized, achieve such recognized stature. However, Judge Block erred in finding that the transient nature of the 5Pointz aerosol art disentitled it to preliminary injunctive relief. This approach failed to recognize the difference between traditional economic copyright rights and VARA’s non-economic moral rights. VARA’s Building Exception provides for a way to resolve the conflict between preserving artwork on buildings and private ownership rights in those buildings. The transient nature of the art is not a factor under the Building Exception. Where artwork cannot be removed from a building without damaging it, as is arguably the case for the 5Pointz art, the artist has a moral right against destruction of art of “recognized stature” unless he has entered into a waiver agreement with the building’s owner. While VARA may sit uncomfortably with private property rights, judges need to respect the balance between moral rights of artists and the rights of building owners set out in the Building Exception.
Susanna Frederick Fischer, Who’s the Vandal? The Recent Controversy over the Destruction of 5Pointz – How Much Legal Protection Should the Law Give to Graffiti/Aerosol Street Art?, 14 J. MARSHALL REV. INTELL. PROP. L. 326 (2015).