We have written often (see here) about the Visual Artists Rights Act of 1990 (VARA), and in particular the emerging legal conversation about how VARA applies to street art.  Now, a recently-initiated case—against New York City and the NYPD—may break new ground on that topic.
 
The Allegations
 
On June 1, artist Michael McLeer (also known as Kaves) filed a complaint in federal district court (E.D.N.Y. Docket 1:21-cv-03093) against the City of New York and its police department regarding the destruction of a mural he (along with a collaborator, although Kaves apparently holds the copyright) had painted in Brooklyn in 2008.  The mural was dedicated to the artists’ late mothers, and had been created with the permission of the property owner.  Over the years, the mural appeared in television shows, advertisements, and two books about graffiti art.  Kaves’s other artworks over the years have also increased in value, some commanding six figures, and his murals elsewhere in the city have received recognition in the community.  
 
The complaint also tells the story of how street art, long targeted as a sign of “social decay” under the “broken windows” approach to policing, has now become a popular and lauded art form.  Indeed, the plaintiff notes, New York City’s own tourism website promotes street art tours, a recognition of the value this type of art brings to the city aesthetically and economically.
 
But, alleges the artist, in early 2021, the NYPD—faced with an increase in graffiti expressing anti-police sentiment, as well as budget cuts reducing their funding for graffiti removal—announced an initiative to reduce graffiti using untrained officers and volunteers.  And on or around April 10, 2021, police officers destroyed Kaves’s mural, apparently without consulting or notifying the property owner, the tenant occupying the property, or the artist.  
 
The complaint alleges that, although the campaign was touted as a collaboration between the public and the NYPD, the reality was that the City didn’t have the resources to do it properly and relied too heavily on untrained officers and volunteers.  It further argues that there was no clear “procedure, training, or protocol” for determining whether a work might be protected by VARA, or even whether it was illegal vandalism at all, as opposed to an authorized or even commissioned artwork.  Further, the campaign is apparently intended to continue through the summer of 2021, without any adequate process for investigating and making decisions about artworks.  Thus, the complaint alleges, valuable authorized art (including but not limited to Kaves’s mural) has been and will continue to be destroyed. 
 
The complaint seeks several forms of relief, including compensatory damages for the destroyed art, as well as punitive damages due to the alleged “reckless and willful” conduct of the NYPD.  The plaintiff also asks for injunctive and declaratory relief, including a halt to the NYPD’s “graffiti clean-up” campaign and public hearings regarding the NYPD’s policies regarding graffiti destruction.
 
Looking To 5Pointz—and Beyond
 
The complaint expressly discusses the landmark 5Pointz case (see here for our earlier posts on that); in fact, Kaves is represented by the same counsel that represented the artists there.  And some of the parallels between this and the 5Pointz litigation are obvious; perhaps most significantly, Kaves’s claims, like those of the artists at 5Pointz, relate to graffiti or street art that was created legally, with the permission of the relevant property owners.  This means that the Court here will not be faced with what is currently an open legal question of whether and how VARA, or copyright law generally, might apply to unauthorized, illegally-created graffiti; that question must wait for another day and a different plaintiff.
 
Kaves’s case also recognizes that both the parties and the Court will need to look to the 5Pointz decisions for guidance.  Because the Court’s rulings in that litigation are among the very few thorough examinations of VARA in this context, the 5Pointz decision will shape the way the parties here litigate several elements of the VARA claim.  For example, allegations regarding Kaves’s extensive artistic training and experience (which ranges from acclaimed gallery exhibitions to commissioned work for major international commercial brands to inclusion in artistic publications beginning in the 1980s) and regarding the community, market, and critical response to his mural and other artworks, are aimed at satisfying VARA’s requirement that a work be of “recognized stature” in order to be protected under VARA.  Likewise, the 5Pointz judgment sent a message to plaintiffs that punitive damages may be available, and to that end, the complaint is careful to include allegations about the NYPD’s purported “wilfullness” and “recklessness” in engaging in this campaign.  
 
But there are several aspects of this case that make it quite different—and arguably more complex—than 5Pointz.  First, unlike the 5Pointz case, this new case is styled as a putative class action, seeking to represent “individuals who have installed artworks with permission from the property owners or operators within the City of New York, whose artworks may have been, or may in the future be destroyed, mutilated, or distorted by the NYPD.”  The complaint notes that there may be hundreds of class members, many of whom lack the means to retain an attorney to pursue claims individually.  The complaint seeks to emphasize that there will be many questions of law and fact that would be common to all class members, including examination of NYPD’s practices and its willfulness and recklessness.  But 5Pointz was not a class action, and the Court there engaged in a careful and detailed evaluation under VARA of each individual artwork that was destroyed there.  There are specific procedural rules and requirements and an extensive body of case law governing class actions, and the Court here may have to decide whether to allow this case to proceed in this form.   

Second, the defendants here are governmental actors acting in their official capacities—which provides grounds for the plaintiff here to assert not only VARA claims but also claims under 42 U.S.C. § 1983 for alleged deprivation of free speech rights and property interests without due process of law.  The complaint alleges that the NYPD’s actions have deterred and chilled the artists’ free speech rights, and have compromised their property rights in their copyrighted works.  These civil rights claims were simply not at issue in 5Pointz (where the defendants were a private company and the individual controlling it), and they will add a further element of complexity to this lawsuit.
 
Nothing substantive has yet occurred in this new litigation; the defendants will respond to the complaint by late July, and an initial conference with the court is set for September.  We will continue to follow the case with interest.