Post by David Niemierzycki

I am thrilled that Moneywise quoted me on the recent $25 million dollar lawsuit filed by renowned visual artist Wyland against FIFA. The global organization is alleged to have whitewashed Wyland's iconic whale mural in Dallas, and painted an ad for the #worldcup over it. The case provides a rare glimpse into the world of Art Law and the seldom litigated Visual Artists Rights Act ("VARA"): The VARA was enacted to protect certain ‘moral rights’ for visual artists, such as the right of integrity, which prevents any deforming or mutilating changes to a qualifying visual work of “recognized stature” without the artist’s written consent during their lifetime. This statute has recently provided meaningful recourse in a high-profile case similar to this, Castillo v. G&M Realty L.P. That case involved the whitewashing and destruction of several graffiti artists’ visual works which had covered the exterior and other portions of a building called ‘5Pointz’ in Long Island City, New York for a little over ten years. The artists were awarded $6.75 million in statutory damages by the trial court, the verdict was upheld on appeal in 2020, and the Supreme Court declined to hear the case. The primary limitation, or rather the crux of cases such as this, is whether the work is of “recognized stature,” and therefore qualifies for protection at all. Tying this all into the immediate dispute, the Northern District of Texas, Dallas Division, (also where this case was filed), stated just last year that “[a] work of recognized stature is not defined in the statute and has not been taken up in this Circuit,” demonstrating the lack of clear guidance in this area of the law. The court did distill some clarifying principles down from the Castillo case and a Seventh Circuit decision, stating the determination “certainly involves a question of fact” and will be “based greatly” upon expert testimony. And Castillo defined a work of recognized stature as “one of high quality, status, or caliber that has been acknowledged as such by a relevant community.” Should the dispute drag on, this part of the analysis should prove the most onerous, though this case appears to have striking factual similarities to Castillo. To counter these factual similarities, the Defendants may attempt to distinguish the work in this case as having a ‘promotional’ or ‘advertising’ purpose, as in Second Circuit case Pollara v. Seymour, and/or being a ‘work-for-hire’, either of which would take it outside of VARA’s ambit. Excited to see where the case goes! https://lnkd.in/e4MHbPfD