Sarah, can you clarify the 90 day notice issue? Because my attorneys are telling me that a 90-day notice is not sufficient if there is no VARA/CAPA waiver signed. Per our attorney: The statement that “If art is incorporated in such a way it cannot be removed w/out significant damage” then a 90 day notice is required fails to include a required 2nd element, which is that not only must it be impossible to remove the art without damage, but the art must also have been installed prior to VARA’s effective date or the artist must have signed a waiver of their rights (see 17 USC 113(d)(1)(a-b).), and only then are two specific protections of VARA (specifically, 17 USC 106A(2) and (3), the rights to attribution and preventing mutilation/destruction) do not apply. So, if the art can’t be removed, and it was installed before VARA became effective or the artist waived their rights, only then the artist doesn’t have the right to prevent it from being removed under VARA.
https://www.law.cornell.edu/uscode/text/17/113
https://www.law.cornell.edu/uscode/text/17/106A
From: public_art_network@americansforthearts.simplelists.com [mailto:public_art_network@americansforthearts.simplelists.com]
On Behalf Of Sarah Odenkirk
Sent: Thursday, February 15, 2018 8:49 AM
To: Lynn Basa; public_art_network@americansforthearts.simplelists.com
Subject: Re: VARA settlement for graffiti in NYC
1. The property was painted with the Owner’s full knowledge and consent.
2. The court found that the Owner painted over the artwork in complete disregard for the Artists’ rights (he could have given 90-days notice but did not) and as an act of revenge.
3. Both the jury and the court found most of the works to be not just artwork, but works of recognized stature.
4. The calculation of damages was based on the court’s discretion within the statutory damages range. The court found that Owner’s actions were willful which entitled each artist to enhanced damages per violation. All of the calculations are set out in charts in the opinion.
If you read the opinion (it’s really only the first 50 pages of the document and it goes fast), all of your questions and more will be answered. The opinion makes it clear that to a large extent, the decision was based on the expertise and professionalism shown by experts and plaintiffs throughout the matter and that the property owner did not do himself any favors by being hostile, recalcitrant and offering weak expert testimony.
Hope this helps. I am meeting with a group of art lawyers tomorrow and we will be discussing the implications of this case at length. If the PAN Council feels it would be helpful and interesting, I am happy to lead a webinar conversation on this case to talk through the entire case and answer any questions.
Best,
Sarah
The Law Office of Sarah Conley Odenkirk
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On February 15, 2018 at 8:32:55 AM, Lynn Basa (lynnbasa@lynnbasa.com) wrote:
Since there have been so few VARA lawsuits won on behalf of artists, I want to be sure I understand the implications of this.
1) Even though it was private property that had been illegally painted, the owner still lost? Didn't he have a right to cover it whether some people considered it Art or not?
2) How was the value of the damages to the artists figured? Did their work have resale value?
I've read the articles and part of the court statement, but I'm still scratching my head over it.
Best,
Lynn Basa
On Wed, Feb 14, 2018 at 10:30 PM, Sarah Odenkirk <sarah@artlawlawyer.com> wrote:
You can see the ruling here:
It also seems that the judge was at least swayed by the way in which the parties conducted themselves during the course of litigation. This is an important lesson for all and a clear reminder that it is almost never just about the letter of the law!
Best,
Sarah
On February 14, 2018 at 5:34:23 PM, Pontious, Susan (ART) (susan.pontious@sfgov.org) wrote:
I agree with Sarah; a ruling like this could really backfire. It also seems, under the circumstances, unfair and I wonder if it will be appealed. Of course, had the building owner understood VARA, the owner could have given the artists 90 days notice and then removed the artwork as VARA allows. VARA does not prevent the removal of architecturally integrated works, like murals, it merely requires giving notice before you do it. But most property owners never heard of VARA or Calif. Art Preservation Act (CAPA) in Calif., so don’t know what their responsibilities and rights are in this regard. Additionally, these properties can be sold, come under new management, etc. so that even if the original owner was aware of CAPA/VARA requirements, that information might not be passed along to new management.
CAPA and VARA were laws written to protect artists moral rights but artists also have the moral responsibility to make sure that the property owners knows their exposure under the law. I know Sarah will agree with me when I say that ideally, there should be a written agreement between the artist and property owner that addresses issues like removal and the artist’s rights under VARA. .
Susan Pontious
Program Director
Civic Art Collection and Public Art Program
San Francisco Arts Commission
Phone: 415-252-2241
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From: public_art_network@americansforthearts.simplelists.com [mailto:public_art_network@americansforthearts.simplelists.com] On Behalf Of Beth Tobey
Sent: Wednesday, February 14, 2018 4:44 PM
To: 'public_art_network@americansforthearts.simplelists.com'
Subject: RE: VARA settlement for graffiti in NYC
Agreed Sarah – We’ve had several new building owners in this last year feel that they were held hostage by a piece of artwork they didn’t realize would so impact what they could do with the building when they bought it. In both cases the businesses were actually very pro art and artists and totally willing to work with the artists but in both cases the artists pursued lawsuits and, as lawyers do (though not you, Sarah, right? J), they sent really inflammatory hyperbolic demands and demanded huge sums of money. What pains me is that the artists don’t seem to realize that if they push these things too hard, there won’t be ANY building owners that will want to give up their walls for murals in the future! It will stop private property owners from feeling that allowing murals on their buildings is worth it. Furthermore, the locals are greatly astonished and offended – the court of public opinion doesn’t see this as reasonable. Maybe that’s a calculation the artist makes and they don’t care – maybe they don’t want a long-term relationship with people in a certain locale and they plan to move on – but in a small town like ours – this gives the artist a bad reputation.
The bottom line is that sometimes there is a boomerang effect with laws that are too extreme –creating the opposite effect than what is actually intended.
Beth
From: public_art_network@americansforthearts.simplelists.com [mailto:public_art_network@americansforthearts.simplelists.com] On Behalf Of Sarah Odenkirk
Sent: Wednesday, February 14, 2018 4:16 PM
To: Julia Muney Moore; public_art_network@americansforthearts.simplelists.com
Subject: Re: VARA settlement for graffiti in NYC
While I understand your reasons for cheering, you should do so with caution. On the one hand, this ruling provides some much-needed protection to artists. On the other hand, it could make the task of deaccessioning more complex for public art programs. I am in the process of reading the entire decision and talking with legal colleagues to get a feel for what impact this might have going forward. I would be happy to discuss the implications of this ruling with anyone who is interested.
Between this ruling and the Oakland percent for art ruling, it’s been a massive week for establishing legal precedent for public art!!
Best,
Sarah
The Law Office of Sarah Conley Odenkirk
3940 Laurel Canyon Blvd., #1355
Studio City, CA 91604
Office/Fax: 818.789.3738Cell: 310.990.9581
sarah@artlawlawyer.com
www.artlawlawyer.com
This E-mail, and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this E-mail, you are hereby notified that any dissemination, distribution or copying of this E-mail, and any attachments thereto, is strictly prohibited. If you have received this E-mail in error, please immediately notify me at the number above and destroy the original and any printout thereof.
IRS CIRCULAR 230 NOTICE. Pursuant to requirements related to practice before the Internal Revenue Service, any tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.
On February 14, 2018 at 2:06:54 PM, Julia Muney Moore (jmoore@indyarts.org) wrote:
We were all cheering this in our office!
Julia Muney Moore
Director of Public Art
Arts Council of Indianapolis
(317) 332-8382 mobile
Art & Soul at the Artsgarden is a celebration of African American art and artists in central Indiana. Join us each week, Wednesday through Saturday, throughout February at the Indianapolis Artsgarden for free performances featuring some of Indianapolis' premier performers. Visit indyarts.org for more information.
On Wed, Feb 14, 2018 at 1:03 PM, Beth Tobey <btobey@cityofsantacruz.com> wrote:
This is worth reading and sharing with your colleagues. Heavy price tag for VARA violations with regards to art of “recognized stature”– even if graffiti.
https://www.nytimes.com/2018/02/12/nyregion/5pointz-graffiti-judgment.html
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