Q: I just took a listing of a commercial building located on a busy street. Approximately twenty feet of the front wall has been covered with pictures painted by at least one local graffiti artist. The work was done without the property owner’s knowledge or permission. The pictures are definitely not my taste (the scenes are too graphic) and I believe the pictures could well be distracting to potential buyers. My Seller wants me to hire someone to paint over the pictures. Does my Seller have any liability for covering up the graffiti? Do I face any liability exposure for hiring the workers?
A: Yes, to both questions. The Seller could face a significant legal problem in painting over the graffiti and, to the extent that you are involved in that process, you could also be liable. A recent federal court in a New York case ruled that graffiti artists are protected under the federal Visual Artists Rights Act (“VARA”) and that their artwork should not have been destroyed.
VARA modifies federal copyright law and provides visual artists with the right to have the integrity of their work protected from any destruction if the work is “of a recognized stature.” The judge in New York ordered a warehouse owner to pay millions of dollars for painting over graffiti created by multiple artists that was easily seen daily by hundreds of thousands of people.
Not all graffiti will qualify for protection under federal copyright laws, but no one should assume that any graffiti can be painted over or otherwise removed simply because the work was not authorized by the property owner and/or the graffiti is not aesthetically pleasing to the beholder.
PRACTICE TIPS
1. The existence of graffiti may not be appreciated by everyone but no effort should be made to cover-up or remove graffiti without first having the situation assessed by an attorney who specializes in copyright law.
2. Property owners should be warned in writing (such as in an email) to review the graffiti artist’s rights to preserve their visual artwork with a knowledgeable attorney before undertaking any steps to destroy that “art.” Not all qualified California real estate attorneys may be aware of the federal law.
3. Real estate agents should not participate in the covering up or removal of graffiti. The opinion of the Seller’s attorney can be relied upon by the Seller, but the Seller’s attorney’s opinion will not protect the real estate agent if the graffiti artist sues. There may also be a problem for the agent in securing insurance coverage depending upon the specific exclusions in the Broker’s Errors & Omissions Policy since violation of copyright law is generally not a covered risk.
This Weekly Practice Tip is an attorney-client privileged document for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright 2019 Broker Risk Management 04/19/19