Amelia Brankov and Alana Kushnir. Photo of Amelia by Lucas Hoeffel. Photo of Alana by Justin Ridler.
Decoding Legalese: Art lawyers Amelia Brankov and Alana Kushnir on Moral Rights
Artworks can trigger legal issues that most artists and collectors may not fully be aware of or even understand. There is no universal law governing art, but there are similar areas of law that apply in many jurisdictions — such as moral rights, copyrights, and contract law. Many of these laws are designed to protect artists and their intellectual property, but understanding their scope and application is also important for collectors, gallerists, and collecting institutions.
We spoke to two art lawyers — Amelia Brankov and Alana Kushnir — based on opposite sides of the globe, in order to gain some clarity on the laws governing art. Amelia is based in the United States, where her firm Brankov PLLC works with galleries and collectors, as well as artist studios, estates and foundations (and every other kind of arts professional, from curators to conservators). Amelia assists clients in all legal aspects of transactions involving artwork including purchase agreements and represents clients in disputes concerning the rights to artwork and artists' legacies. She is the Chair of the Intellectual Property Subcommittee of the Art Law Committee of the New York City Bar Association.
Alana is based in Australia and is the Founder and Director of Guest Work Agency, an art law and advisory firm that provides innovative legal solutions for the art industry. She is also Board Director of the Australian Centre for Contemporary Art (ACCA) and the Principal Investigator of the Serpentine Gallery’s R&D Platform Legal Lab, which researches emergent legal issues in relation to art and technology, including how the law can support and empower practitioners in these overlapping fields.
Both Amelia and Alana highlighted 5Pointz as the preeminent case study in moral rights, so we’ll use this ruling as an entry point for understanding some of the finer points of art law.
View of 5Pointz, by Ezmosis, CC BY-SA 3.0, via Wikimedia Commons
The $6.75 Million 5Pointz Ruling — A Watershed Moment in Art Law
In February 2020, a US appeals court upheld a ruling that awarded $6.75 million to a group of 21 graffiti artists whose work had been destroyed — without their consent — when landlord and developer Gerald Wolkoff white-washed the 5Pointz graffiti art site in Long Island City (LIC), New York. This landmark ruling set a new precedent for legal disputes in the cultural arena in the U.S. and shone a light on the complicated issue of “moral rights” in the art world.
The 5Pointz industrial complex has been owned by Wolkoff since the 1970s and included twelve defunct factory buildings — one of which had housed more than 200 artist studios. The site had become a cultural destination for urban art lovers since 2002, increasing tourism to LIC and contributing to the once-gritty neighborhood’s growing reputation as an up-and-coming arts district. As with most arts districts, gentrification ensued and 5Pointz was ultimately demolished in 2013 to make room for upscale condos.
It’s important to note that Wolkoff had reportedly always intended to develop 5Pointz. Before his legal woes, Wolkoff had even been considered something of an arts patron, trading studio space in his property for artworks and thereby providing emerging artists with affordable spaces in an increasingly unaffordable metro area. Furthermore, his decision to allow graffiti artists to adorn the structure was intended as a well-meaning gesture of patronage — allowing such artists to work without fear of arrest, in relative safety and among an enthusiastic and supportive community.
Despite the general consensus that 5Pointz had become a kind of open-air graffiti museum (replete with its own curator, graffiti artist Jonathan Cohen aka Meres One), the artists’ 2013 petition that the New York City Landmarks Preservation Commission decree the site as a landmark was rejected “because the art was less than 30 years old.” (source) That same year, following the white-washing, the artists sued Wolkoff for violating their moral rights. In 2017, the artists won their case in a jury trial and, in 2018, a judge officially handed down Wolkoff’s penalty of $6.75 million. (As mentioned, Wolkoff appealed this decision — and lost — in 2020.)
According to Artnet, “The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain ‘moral rights’ for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.” (source) The 5Pointz case was thus a watershed moment in the history of artists’ rights.
Moral Rights and The Visual Artists Rights Act (VARA) Explained
The concept of moral rights originated in France (reportedly at the behest of author Victor Hugo) and is based on the argument that art is fundamentally different from other man-made products.
As art lawyer Amelia Brankov explains, when artists create a work of art, “they inject their spirit or essence into their work.” As abstract as that may sound, this concept has informed the core of art law for more than a century.
Legally speaking, an artist’s rights were officially codified in 1886 by The Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention (named for its city of origin, Berne, Switzerland) essentially laid the groundwork for copyright law in relation to works of artistic and literary merit and extends to the countries that ratified the treaty. Currently, 179 countries (out of 195) have signed the treaty. (source)
The Berne Convention treaty underwent a series of revisions and amendments throughout the 20th century, but the treaty essentially protects authorship and grants authors certain exclusive rights (the right to make reproductions, the right to translation, etc.) until a certain number of years after the author’s death. This year count differs by jurisdiction — in the United States, for example, copyright in artistic works generally extends for 70 years after the author’s death; same with Australia. (To view a list of each country’s copyright length, click here.)
It wasn’t until 1990 that the United States officially joined the Berne convention and codified a limited subset of moral rights into the Copyright Act, which came to be known as the Visual Artists Rights Act (VARA). Moral rights in the U.S. consists of two distinct rights: the right of attribution and the right of integrity.
As Amelia explains, “The right of attribution is fairly straightforward and means that an artist (i.e. the author of a work of visual art) has the right to have their name attributed to a work of their own creation. It also prevents the use of their name for a work that they didn't create.”
The right of integrity stipulates that “the artist also has the right to prevent the use of his or her name as the author of an artwork in the event of a distortion, mutilation or other modification of the work which would be prejudicial to his or her honor or reputation,” says Amelia. “Additionally, the artist shall have the right to prevent any such intentional distortion, mutilation or other modification of his or her work that would be prejudicial to his or her honor or reputation, and to prevent any destruction of a work of recognized stature.” It’s these final words — ”recognized stature” — that sealed the fate of 5Pointz and Wolkoff.
The graffiti of 5Pointz had arguably become a cultural touch-point by the time of its destruction (at the hands of Wolkoff). As such, it was considered a work of “recognized stature.” According to the presiding judge (and the original jury), it didn’t matter that Wolkoff had always planned to raze 5Pointz for luxury lofts— the artists’ moral rights had been violated when Wolkoff destroyed their work without their consent.
If this seems a bit convoluted, buckle up. Amelia points to two other instances wherein one artist destroyed another artist’s work and claimed artistic merit in the process, which could potentially be protected as a “fair use” of the underlying artwork. The first involved a “country western rapper,” a shotgun and an expletive. The second involved a Brooklyn-based artist collective known as MSCHF, who cut up a Damien Hirst Spot print and sold each spot to the highest bidder, ultimately pocketing thousands of dollars in profit. They entitled this conceptual art prank “88 Holes.” (MSCHF was recently sued by Nike for a another art stunt called "Satan Shoes.")
Art lawyer Alana Kushnir points out that each jurisdiction has its own interpretation of the language included in these laws. Take, for example, the right of integrity:
“In Australia, the derogatory treatment of a work does not necessarily mean a physical intervention with the work. It can include any context which the artist could argue is damaging to their reputation. In the U.S., I believe, the interpretation is narrower, meaning that the work must be physically altered or damaged to be considered derogatory treatment.”
Alana points to these nuances across jurisdictions as part of the reason why art law is so complex. While laws depend on national borders, the art market is an international entity. An artist working in one country might exhibit an artwork in a gallery in another country, before ultimately selling the piece (through said gallery) to a buyer in yet another country. This fluidity across borders can make settling art disputes incredibly difficult.
“Every time I deal with a matter that has an international aspect — and all lawyers would do this — I have to work through the mechanics of those different jurisdictions,” Alana explains. “It’s also important to note that most art disputes don’t actually go to court. It’s very costly to bring an action to court, regardless of where you are in the world — so art disputes are often settled through what we call ‘alternative dispute resolution.’ Mediation or arbitration, which don’t have the same authority as a court, can nevertheless be really effective in resolving a private dispute.”
To that end, Alana highlights the Court of Arbitration for Art, a non-profit established in the Netherlands in 2018, whose “aims are to promote arbitration and mediation and other lawful means to prevent, reduce and resolve disputes that arise in the wider art community, this also includes everything related to it or beneficial to it, everything in the broadest sense of the word.” (source)
Alana emphasizes that “Something I’ve noticed in my research at the Serpentine Legal Lab is that a lot of the issues that arise in terms of producing or transacting in art are issues that don’t have borders. Art is very much global in its mentality. Wherever the artist or collector is based, they may be faced with the same or similar issues as artists and collectors are facing elsewhere in the world. So I think these more alternative forms of dispute resolution are quite interesting and I believe that they will play an increasing role in the future, as well.”
Photo by Scott Graham on Unsplash
Contracts, Clauses & VARA Waivers
Even after an artist has sold an artwork, the artist (or author) still possesses the rights as outlined above. In the event of a sale, the “title” of an artwork passes to its buyer, but the copyright and moral rights do not — they remain with the artist.
“Most Americans assume that, once you buy something, you should be able to do whatever you want with it,” Amelia says. “But, that's actually not true. And, most people don't realize this.”
Most gallery invoices will include a clause stipulating exactly this phrase: “title passes; copyright remains with the artist.” A purchase agreement may get even more granular in its conditions of sale and the seller’s restrictions on the buyer.
“There’s been a lot of talk lately about collectors being required to commit to holding onto an artwork for a certain period of time and, if they choose to resell, agreeing to offer it first to the gallery where they acquired it,” Alana explains. “So contracts and purchase agreements are actually a creative way of enforcing the rights of the artist. However, here in Australia (and in other jurisdictions like the UK), there are consumer protection and contractual principles which may prevent a contract from being too restrictive on the purchaser. Consequently, if a contract was to become the subject of a dispute and end up in court, that kind of ‘restraint clause’ might not necessarily hold up.”
Ultimately, Alana advises that “everybody should be able to read the contract and understand what it says. If you don’t understand it, that’s already a red flag, and you should consider getting legal advice to ensure that you enter the contract with your eyes wide open.”
Even if parts of the art world still operate on “handshake deals,” having a written contract is recommended for every transaction.
"Handshake deals certainly make the art world more interesting,” says Alana, “but having a contract is a very useful tool. That being said, signing a contract is not a ‘be-all-and-end-all’ — you can’t just write anything you want into a contract and expect it to hold up in court."
Still, good fences make good neighbors, as the saying goes. After the 5Pointz case, property developers and landlords who may have been eying an installation or commissioning a major work were unsurprisingly skittish about working with artists, lest they also be fined several million dollars somewhere down the road. However, Amelia points out that such parties can request a VARA waiver from the artist — essentially a contract waiving (or restricting) the artist’s rights.
Just to prove how far the art world has come in recent years, look no further than this declaration in the executive summary on the “Waiver of Moral Rights in Visual Artworks” by the Library of Congress’ Copyright Office from 1996: “VARA waivers are rare because written contracts for art transactions are rare.” (source) As the art world continues to evolve and expand — alongside the accelerating digitization of the cultural landscape — it’s increasingly likely that the days of “handshake deals” are numbered. And that’s a good thing.
Moral rights, VARA, contracts and other legal structures are intended to protect artists, often the most vulnerable in any transaction. But, they can (and do) protect both sides of the table, so to speak. As legal provisions are increasingly adopted by the art world as industry standards, there will hopefully be fewer disputes, less acrimony, and more professionalism across the field as a whole, but only if all parties are aware of — and understand — their rights.