‘Recognized Stature’: Cities Think Twice Before Removing Art

August 12, 2020

By Rusi Patel, GMA General Counsel

As many of you know, GMA has been constructing a new headquarters with hopes of completing the project by mid-year 2021. What you might not know is that GMA plans to include within the new headquarters artwork, both inside and outside of the buildings that highlights our members and the work being done by our city leaders across the state.

Development must often consider art and partner with artists to make the development unique and memorable. Sometimes, however, developers take an opposite track and seek to eliminate existing artwork. When developing property, it is always a good idea to try and partner with those in the community who want to add to the purpose of the development. It is also important to know that a specific federal law, the Visual Artists Rights Act of 1990 (VARA), grants certain rights to visual artists, including the right to prevent any intentional distortion, mutilation or modification of the work of art which would harm their reputation or any destruction of a work of art of a recognized stature. Recently, in the case Castillo v. G&M Realty L.P., a developer in New York City learned the hard way that not partnering with local artists to save their works could have severe financial consequences. The developer owned a series of warehouses that, under the curatorship of a distinguished graffiti artist, was trans- formed into a world-renowned exhibition of graffiti art, attracting thousands of visitors each day.

The artist learned that the developer planned on demolishing the warehouses to build apartments  on  the site and, after unsuccessfully trying to prevent the demolition, he and other artists sued the developer under the VARA.

Even though the district court granted a temporary restraining order, when it expired the developer hired painters to whitewash over 49 unique pieces of artwork. After a trial, the court determined that 45 of those pieces had achieved the “recognized stature” level of protection under the VARA and that the developer had violated federal law by destroying them. Be- cause the trial court determined that the actions of the developer were willful, it awarded the artists a $6.75 million judgment.

On appeal, the Second Circuit Court of Appeals held “that a work is of recognized stature when it is one of high quality, status or caliber that has been acknowledged as such by a relevant community” and that, even though these pieces of art were temporary, they could still rise to the level of a “recognized stature.” As a result, the court upheld the award to the artists.

City leaders should also keep aware of the VARA when redeveloping their downtowns as  a  piece  of art does not need to be in New York  City to achieve a “recognized stature” and become protected under federal law. Also, Art—even graffiti art—can sometimes transform a forgettable structure into a world-famous piece of architecture.

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