Should Graffiti Be Protected Art?

In what will prove to be a very interesting decision, however it comes out, a New York City developer is appealing a lower court ruling that ordered him to pay a group of artists $6.8 million in damages, for destroying graffiti which they created on his property.

Some decades ago, the developer had purchased a group of old factory buildings in Long Island City, Queens, with the intent of eventually redeveloping them or the land on which they sat. Beginning in the 1990’s, graffiti artists were given permission to rent studios in the crumbling complex, and to paint all over the buildings. Eventually the site became known as “5Pointz”, and attracted visitors and arts media coverage from all over the world.

As gentrification in recent years caused real estate prices to spiral into the stratosphere, Long Island City became one of the key epicenters of this trend, thanks to its large concentration of abandoned industrial and commercial structures. To take advantage of the market conditions, the decision was finally taken by the property owner to demolish 5Pointz, and redevelop the site with condos. The requisite public hearings and permit applications began in 2013, despite efforts by the graffiti makers and their supporters to stop it. As part of the redevelopment, most of the decades’ worth of graffiti that had accumulated at the site was whitewashed prior to demolition.

The “aerosol artists” [eyeroll] then sued claiming, inter alia, that they had not been given 90 days’ notice to take action with respect to the impending destruction of their art. To the surprise of many, a trial court agreed with the artists and awarded damages against the developer, who is now appealing. The basis for the appeal, in part, appears to be a somewhat powder keg argument that graffiti art should not be accorded the same protections as other types of art.

This isn’t an art law blog, and I don’t want to go into a lengthy discussion of the competing legal rationales involved in this case. That being said, whatever one thinks of graffiti art – more on that in a moment – the developer in this case should never have agreed to permit graffiti or artistic use of the complex in the first place, and certainly not for such a lengthy period of time. The developer even chose to incorporate some of the graffiti art which was not destroyed into the interior spaces of the new towers, and unsuccessfully attempted to trademark the term “5Pointz” – a moniker created by one of the graffiti artists – to market the property, arguing that he owned the term because he owned the buildings.

Apart from the idiosyncratic aspects of the 5Pointz case however, the larger issue here is the legitimization of graffiti art in general, which is why the outcome of this appeals process could be of greater significance than might at first appear. The proliferation of and acceptance of graffiti is a serious problem, and one which I maintain has been encouraged by the art establishment. The celebration of the subversive at the expense of basic property rights and the rule of law is the stock-and-trade of most Contemporary Art aficionados, from dealers and curators to reporters and collectors. And unfortunately, the rest of us who do not care for it must bear the consequences of their celebration of such efforts.

Back in August for example, someone decided to vandalize a Romanesque sculpture on one of the façades of the famous Cathedral of Santiago de Compostela in Spain, using a blue permanent marker to paint over the face and part of the body of a saint with references to the band, Kiss. It took restorers hours of work, including the use of laser treatments, to remove the graffiti, and the event raised an outcry in the international art press. The Cathedral, a UNESCO World Heritage site, had just been cleaned after a lengthy restoration that took years and cost millions of dollars.

Meanwhile, just down the street at the Centro Gallego de Arte Contemporaneo (CGAC), Santiago’s museum of Contemporary Art, CGAC held an “artists’ workshop” this summer which included the work of – you probably already guessed it – a self-described “subversive” graffiti artist.

This is an all-too-cute example of how the art establishment seeks to have things both ways. The art world simultaneously sows the seeds for destruction of existing works of art and architecture by raising an artist such as Banksy to heights of international fame unimaginable to any petty criminal – excuse me, I mean, “aerosol artist” – before him. Galleries and museums, media and the art press, by their fawning coverage of “subversive” graffiti art, are, in effect, encouraging others to go out and try to become the next Banksy themselves.

In the case of many European cities and towns, not just Santiago de Compostela, this state of affairs has helped to create an environment in which the antisocial and illegal behavior of those who choose to defile both public and private property with their “talent” is a seemingly unstoppable juggernaut. It’s impossible to travel anywhere in Europe now without seeing graffiti slathered all over, from street signs to shop doors, and local authorities seem to have given up the effort to swiftly and effectively prosecute those who engage in it. The notion of catching an “aerosol artist” and forcing them to do hours of community service removing graffiti from bus shelters, overpasses, and the like seems too harsh a penalty for most Europeans to contemplate (though if my readers are aware of such penalties actually being enforced anywhere in the EU, by all means please share a link with us all in the comments section.)

Yet even as we may tut-tut at the inaction of the Europeans, we are rapidly reaching the same point in the U.S. Taking Amtrak into Philadelphia just a few weeks ago for example, I was shocked at how graffiti coverage begins many miles outside of town, well before one actually comes within sight of the city itself. It made me wonder whether there is a national shortage of whitewash or flat gray house paint which has gone hitherto reported by the media.

No doubt some of the graffiti that we see in depressed areas of cities like Philadelphia is the work of those who are, in effect, crying for help. These are people living in desperate, dangerous conditions, with no hope for a better future, and they live a life of suffering which most of us cannot even begin to imagine. It doesn’t excuse their behavior, but it at least explains it; to be fair, rational adults, we need to acknowledge this.

That being said however, I suspect that a research statistician would be able to prove that most of the current crop of graffiti that we see is in fact of the, “Aren’t I cool? Now where’s my phone so I can snap a picture of this for my social media accounts before I go back to designing my next tattoo on my laptop,” variety. In fact, if you follow any art accounts on Instagram, you’re very much aware that the site is filled with images from events and exhibitions in which members of the Millennial bourgeoisie use graffiti to express their frustration at…I’m not sure what, exactly. Their local Whole Foods being out of avocados today?

Who knows how long the 5Pointz case will take to grind its way through the court system, or how high any further appeals might go, but the end result is absolutely going to be worth keeping an eye on. Will there be a narrow ruling, tailored to the particular circumstances of the case? Or will some appellate court create a broad precedent by which all future property owners, if they do not immediately take action to remove any trace of graffiti, will be stuck paying damages to “aerosol artists” if they attempt to remove their work at a later date? Stay tuned for developments.


Art News Roundup: Rich People Are Rich Edition

Contemporary Artist Andrea Fraser, who does not actually produce anything that a reasonable person would recognize as being art, has just published a new book (or is it art?) titled “2016 in Museums, Money, and Politics”. As ArtNews explains in this rather meandering review, the thesis of the book is that the United States used to be a democracy, but is now a plutocracy, and for some time now Ms. Fraser has had a bee in her bonnet about museums only showing what rich and powerful people want to be shown. Presumably, this includes herself, since she has had shows at most of the more famous Modern and Contemporary Art galleries around the world, when she is not literally prostituting herself on camera, as she did in one of her performance art pieces.

Here we arrive at the place which few in the Contemporary Art world want to visit: the land of grown-ups. It may come as a great shock to the reader to learn that, throughout human history, rich people have not only dominated politics and government – including from the beginning of the American Republic – but they have also used their wealth to do truly terrible things, such as pay for great works of art. Presumably, we would all have been better off if the Medici had not sponsored the young Michelangelo’s studies, or the Habsburgs had not patronized Mozart’s concerts.

And now, if you’ll indulge me, let’s move on to some art news that is actually interesting.

Frick Fumble?

This is going to prove quite an interesting legal tangle to sort out.

The Frick, which recently acquired a large, circa 1810 portrait of Prince Camillo Borghese by the French painter François Gérard (1770-1837), applied for and received an export license from the Italian government to take the painting out of Italy. Now it seems that Italy is crying foul, because on the paperwork the Frick did not mention that the subject of the painting was Prince Camillo. For its part, the Frick counters that the name of the sitter is written on the back of the picture, so why didn’t the Italian authorities actually examine it when they were considering whether to grant an export license? Borghese is not one of my favorite people, having decided to hop into bed with the Bonapartists – quite literally, by marrying Napoleon’s sister Pauline, the subject of one of Canova’s most famous sculptures – but it’s certainly a good portrait. We shall have to see where all of this leads.


Ponti Panel

Staying in Italy, I have to say that on the whole, I don’t much care for the work of architect, artist, and designer Gio Ponti (1891-1979). His Denver Art Museum is an absolutely hideous building, and his Taranto Co-Cathedral looks like a stage set for a mod-minimalist Vincent Price horror film from the 1960’s. However, one aspect of his project to expand and redesign the University of Padua caught my eye in this New York Times piece announcing an upcoming retrospective on Ponti’s work this fall at the Musée des Arts Décoratifs. This examination room, where a student would have to sit surrounded by professors critiquing and criticizing his dissertation, is an unusually cheerful space for such an event. When I had to give my viva voce, it was in a darkened room with lights glaring in my face, like at a police interrogation in a film noir. Had I this panel to look at, I probably would have been less nervous.


Tintoretto’s Turn

To celebrate the 500th birthday of one of the most important and influential figures in Italian Renaissance art, on September 6th the Palazzo Ducale in Venice will be opening a major retrospective on the life and work of Jacopo Comin (1518-1594), better known as “Tintoretto”. Fortunately, those of us on this side of the pond will not be left out of the picture, because the exhibition will travel to the National Gallery here in DC beginning March 10th of next year. This will be the first major retrospective of Tintoretto’s work ever held in the U.S., so it promises to be one of those “blockbuster” exhibitions that you may want to choose a Wednesday morning to go visit, rather than a Saturday afternoon. While I don’t believe that Tintoretto’s “Il Paradiso” from the Doge’s Palace, the largest painting in the world ever painted on canvas – 74 feet long and 30 feet tall – will be making the trip, I’m illustrating it here just so you can marvel at the sheer bravura of what the artist was able to accomplish. This will be one exhibition that you should not miss, if you find yourself in Venice this fall or in Washington in the spring.



Resale Royalties: Beating Back the Bad

This past Friday the 9th Circuit (!) did an unexpectedly rational thing and struck down most of a California law which had established a state-wide system of artist royalties. The court found that the California law was in conflict with Federal law which, under the Copyright Act, does not recognize the right of an artist or their estate to receive a payment each time one of their works is resold to a new buyer. As a result, auctioneers like Sotheby’s, Christie’s, and Ebay can breathe easily for the time being. However, I suspect that in the end, this is a battle which they may ultimately lose.

The concept of droit de suite is something that has fascinated me for nearly two decades now, because even with this victory for common sense, I see it hurtling toward us in all of its ridiculousness. The basic premise is that artists or their estates are entitled receive royalties every time a work of theirs is resold, at a certain percentage or amount, up to a fixed period of years. In France, the term is for the life of the artist plus seventy years, but the time periods vary from country to country.

While originally designed to help the prototypical starving artist in his Parisian garret, the real effect was to make already wealthy artists and their estates or foundations even wealthier. Picasso, for example, has been dead for 45 years and died one of the wealthiest artist in history, but his beneficiaries are still collecting droit de suite payments every time a work of his is sold in France. Legislation proposed in Congress a few years ago, which I wrote about at the time, would have established an American version of this practice, but fortunately for everyone it died.

Among those who brought the case which ended up in the 9th was Contemporary Artist Chuck Close. Mr. Close, as it happens, is one of the richest artists in America, with an estimated net worth of $25 million. I don’t imagine the payments made much difference to his bottom line, but then without thinking about how the market actually works – wherein young, starving, unknown artists have to sometimes wait decades before their works command high prices, if they ever do in their own lifetimes – does not seem to have been either his or the other plaintiffs’ strong suit.

The interesting twist here for the future is the fact that the court’s decision turned on the issue of the federal law preempting the state law. Since the Copyright Act does not recognize droit de suite, the court reasoned, California could not impose it once the Copyright Act went into effect. However, anyone who works in intellectual property will tell you that the Copyright Act is ripe for revision, particularly because technology has changed rather dramatically since it first went into effect. Moreover, as I reported several years ago, the Copyright Office itself has come out in favor of establishing droit de suite for American artists.

Chances are, one day we will end up with an American version of droit de suite. But, if I may be so nerdy as to say so, it is not THIS day.