Lessons From 5Pointz: What Real Estate Owners and Developers Need to Know about Street ArtNovember 2017
Five Key Points for Real Estate Owners and Developers
Are you an owner or developer considering adding visual art to your property? Or have you purchased a property with existing visual art? Here are five important points to consider.
- Always be aware of VARA-related issues. If you’re acquiring property with visual art that could be protected, make sure your due diligence includes VARA. And if you grant an artist permission to affix art to your property, make sure you have a written agreement under which the artist waives his or her VARA rights, perhaps with certain conditions.
- How do I know if I’m not dealing with common illegal street art? If you’re acquiring, renovating or destroying property with street art, you should assess whether it’s of a “recognized stature,” which would make it protected by copyright law. Despite the often illegal nature of graffiti, street art, such as murals, may have been affixed with a prior owner’s permission, or it may have been placed illegally but has since has risen to a level of recognized stature.
- Manage the press and your public image. Local communities can become vociferous opponents of a development project if they oppose it, or choose to contest the required special permits or zoning variances. If the community favors the artist, it could cause delays in the development process.
- Be mindful when commissioning “collective” art projects. Building owners who commission an artist to create a new work which is part of a “collective” work, should try to obtain a written agreement from the artist designating the work as a “work made for hire,” thereby eliminating a potential future VARA claim.
- Wait, that Banksy is mine now? If a street artist of “recognized stature” paints a building wall without permission, the copyright and VARA rights remain with the artist, but the physical object on which the art was affixed remains the property of the building owner. This raises interesting legal questions regarding an owner’s right to remove and sell the work without damaging it, and the potential for litigation.
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© 2017 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.