Nine graffiti artists are suing the owner of the “5Pointz” building complex in Long Island, Queens, for painting over their murals on the building (shown above before whitewashing).

As reported by Hyperallergic, the artists (who go by street names such as Toofly and Panic) claim that the property owner and his company, “without giving [the artists] a fair opportunity to remove and preserve their work, or even the minimum notice required by law,” destroyed their work “under cover of night.”

The complaint asserts that this destruction was

gratuitous, willful, and wanton, and undertaken without regard to the feelings, reputations, or financial interests of the plaintiffs, who now seek compensation for their devastating losses.

The white-washing of the graffiti happened after the demolition of the building was already approved. According to the complaint, the whitewashing

denied [the artists] the opportunity to record, preserve, and/or remove their work, which could have been readily accomplished prior to or during the demolition of the building or with legal notice.

According to the artists, the building owner and his company

could have permitted [the artists] an opportunity to mitigate their damages, but they chose not to do so. Instead, they chose to act in a manner that can only be seen as having been intended to cause intense shock and emotional trauma by inflicting an egregious public insult and destruction of protected artwork.

The artists claim that their work was protected by the Visual Artists Rights Act (VARA).

Moral Rights

The VARA is the only “moral rights” clause in the US Copyright Act. It protects:

  • The right of attribution – the right of an artist to control when a work can be attributed to him or her
  • The right of integrity – the right “to prevent any destruction of a work of recognized stature…”

The lawsuit relates to the latter right.

VARA defines a work of visual art to include a painting, drawing, print, or sculpture, existing in a single copy.”

In an earlier case involving the same graffiti, a judge found that it was not a “work of visual art” but only a tourist attraction.

The Ninth Circuit ruled in another copyright infringement case, involving the band Green Day, that the work of an “exterior aerosol artist” could be protected under copyright law. The band used the graffiti in the video backdrop of its stage show.

The Green Day decision may be found here, and the complaint in the 5Pointz case is here.


Although it is too soon for intellectual property lawyers to advise their clients to refrain from painting over graffiti on “moral rights” grounds, this will be an interesting case to watch.

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Photo Attribution: “View of 5 Pointz, January 20, 2013″ by Ezmosis – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

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