VARA: A Protection for Artists in the Gentrification Era

By Aaron Ogunro

As cities change and grow, gentrification and the redevelopment of cities often lead to the removal and destruction of local artifacts, many of which are the products of local artists. Luckily, copyright law provides a recourse for artists whose works are subject to such treatment. 

In September, the U.S. District Court for the Western District of Pennsylvania ruled that a Pittsburgh mural artist, Kyle Holbrook, can proceed with his Visual Artists Rights Act (“VARA”) claims against various developers, landlords, and agencies who allegedly destroyed his works. 

VARA ensures that artists’ reputations remain intact by granting artists two basic rights: the right of attribution and the right of integrity. The right of attribution gives an artist the right to claim ownership of a piece of work that was created by him or her. The right of integrity prevents works of visual art from being intentionally distorted, mutilated, or modified and works of recognized stature from being destroyed.

Kyle Holbrook is an American muralist, best known for his street art. Holbrook’s murals were painted on various buildings, walls, and bridges throughout Pittsburgh’s East End. The structures that contained Holbrook’s works were removed by the defendants for redevelopment projects that were occurring throughout the neighborhood. Holbrook claims that the removal and destruction of these structures that contained his works were in direct violation of VARA. The landowners, developers, and agencies that were sued by Holbrook argue that the murals were not of sufficient stature to warrant protection under VARA. Further, the defendants also question whether the works were actually destroyed. 

The judge presiding over the case held that Holbrook’s complaint was sufficient to maintain his VARA claims and that discovery would be needed to understand the extent of the destruction.  Consequently, and luckily for Holbrook, he will have his day in court. However, the artist will have to overcome several hurdles in order to be successful. Specifically, in order to counteract the defendants’ arguments, he will have to prove that his murals were works of sufficient recognized stature to trigger VARA protection. To qualify, a work must be viewed as meritorious and must be accepted by members of the art community. 

This could prove to be a challenge for Holbrook.  Because VARA protection only extends to the subset of works of visual art created by artists of recognized stature, many VARA plaintiffs who lack name recognition among the general public sometimes run into difficulty convincing courts that their works are of sufficiently recognized stature. If the works are deemed to be of importance to both the local community and the art world, it is very possible Holbrook will ultimately be successful.

Success in VARA cases is not uncommon for artists and muralists such as Holbrook. In 2018, a judge awarded 21 street artists a $6.75 million judgment when a real estate developer destroyed artists’ graffiti works in order to build luxury apartments. The judge decided that 45 of the works at issue in the case were of recognized stature and had been destroyed, awarding statutory damages of $150,000 per piece.

Recovery of statutory damages is just one available remedy under VARA. Like other Copyright Act violations, plaintiffs’ remedies also include injunctive relief, actual damages, and attorneys’ fees. 

If you have questions regarding the copyrightability of your work or whether it is being infringed upon, please reach out to us to further discuss your issues.