Don’t Cry Over Spilled Paint — Sue! VARA Claim Filed Against Detroit Real Estate Company
News of up-and-coming Detroit-based artist, Katherine Craig, splattered across headlines in the art world when she recently filed a lawsuit under Visual Artists Rights Act (VARA). The complaint requests injunctive relief against the new owner of the building on which her mural is displayed, asserting that the building owner’s plans for renovation and/or sale threaten to “deface, modify, mutilate, or destroy” the art in violation of Ms. Craig’s rights granted under VARA.
Ms. Craig’s mural, known as The Illuminated Mural, was unveiled in 2009 and depicts a “bleeding rainbow” of colored paint dripped and splattered across a vibrant blue backdrop. The work was funded through the College of Creative Studies’ Community + Public Arts: Detroit (CPAD) Program, and was created by pouring over 100 gallons of paint from the roof of the building down the building’s 105-by-125-foot wall and repurposing everyday objects, such as fire extinguishers and salad-dressing bottles, to mix and fade the paint across the building’s exterior. Prior to creating the mural, Ms. Craig scouted the building for the work and signed a contract with the building’s then-owner Boydell Development Corporation, agreeing that the work was “intended to be long lasting for the Northend community” and that the mural would “remain on the building for no less than a ten year time period.” Since the mural’s creation, it has been featured in numerous documentaries and art shows, even serving as a backdrop for a recent music video. The work has achieved both local and national recognition, and has been called “[m]aybe Detroit’s most drop-dead gorgeous mural” by the Detroit Free Press.
Princeton Enterprises, Inc., a real estate investment company that acquired the building in January, 2015, indicated its interest in renovating and redeveloping the building for use as apartments, and has even once listed the building in an auction, describing it as “ideal for a variety of uses, including loft or apartment conversions.” Ms. Craig claims that the new owners plan to “[punch] holes in the [mural’s] face to make windows,” thereby violating her moral rights in the work. While the company has offered to pay Ms. Craig a fee to release her claims of moral rights, she has not accepted. The company has not made representations that it plans to respect Ms. Craig’s rights against modification or destruction, nor has it indicated its intent to notify potential buyers of her rights.
The Visual Artists Rights Act was adopted in 1990 as an amendment to the 1976 Copyright Act, granting a form of statutory protection to moral rights. While artists have long enjoyed protection over their moral rights in foreign markets, U.S. copyright law has been reluctant to recognize such protections. VARA may not encompass the breadth of moral rights that artists typically hold in Europe and elsewhere, but the act specifically grants authors the right to (1) claim authorship over a work, (2) prevent the use of his or her name as the author of any work which he or she did not create, (3) prevent the use of his or her name as the author of any work which has been distorted, mutilated, or modified in a way that is prejudicial to the author’s honor or reputation, and (4) prevent intentional distortion, mutilation, or modification of the author’s work in a way that is prejudicial to the their honor or reputation. (footnote: 17 U.S.C. §106).
The Act only covers “works of visual art,” defined by the Copyright Act as “a painting, drawing, print, … sculpture …, [or] still photographic image,” however it specifically contemplates and provides protection to murals “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.” (footnote: 17 U.S.C. §113). The Act specifies that the author of such a mural holds moral rights protection under 17 U.S.C. §106 unless “the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.”
Ms. Craig filed for VARA protection in a Detroit US District Court on January 5, 2016. Ms. Craig denies any argument that the mural was a “work made for hire” and therefore excluded from the definition of “works of visual art” under the Act (footnote: 17 U.S.C. §101), as her complaint reiterates that she was “not commissioned or hired to complete it” and that “the artwork’s conception and execution were entirely her own,” making her the sole author. She also registered the work with the US Copyright Office in 2012, and remains the sole copyright holder of the work.
As the sole author and copyright holder, Ms. Craig asserts that Princeton Enterprises’ contemplation of renovating the building for apartments, or selling the building without notifying potential buyers of her copyright, threatens to modify or destroy her work, in violation of her VARA-protected moral rights – rights which Ms. Craig claims she never “expressly waived” under her contract with Boyden or through Princeton’s buyout offer. Ms. Craig has requested that the court grant an injunction barring Princeton from “taking action to alter deface, modify, mutilate, or destroy The Illuminated Mural,” and require the company to “disclose the legal status of the mural to all potential buyers” of the building.
It will be interesting to see how this case unfolds in Detroit, as the city balances its desire to gentrify with its long history of supporting the arts.