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Graffiti vs. Property Rights

A recent headline screamed out: “New York Judge Awards $6.7 Million To 21 Graffiti Artists For Destroyed Murals.”

That might be right.

There is an actual law on the books which could support such a judicial finding. Alternatively, the award was possibly made for a contract violation pertaining to graffiti! It might thus be incorrect to blame Judge Frederic Block (no relation to the present author) for denigrating private property rights in favor of graffiti artists who trespass with their paint on buildings owned by other people.

What is the story behind this brouhaha?

Jerry Wolkoff is the owner of the 5Pointz building complex in Queens, actually a former factory. In the 1990s he made a deal with several graffiti artists allowing them to display their art on his vacant five-story building. But then he reneged, and in 2013 without any by your leave or payment to them, he whitewashed over their drawings. They launched a successful lawsuit against him. Wolkoff was ordered to pay almost $7 million to 21 different artists.

However, the story does not end there. For there is a law lurking in the background called the Visual Artists Rights Act of 1990, which, according to The New York Times, “has been used to protect public art of ‘recognized stature’ created on someone’s else property.” This is a horse of an entirely different color, legally speaking. According to this legislative enactment, unless the owner wishes to knock down his entire building (as it happens, that was Wolkoff’s intention) he is not allowed to engage in any “intentional distortion, mutilation, or other modification of that work which would be prejudicial to…(the) honor or reputation” of the graffitist.

Waitasec. Hold on there. Say what? This means I may go the Emprise State Building, the Woolworth Building, the Rockefeller Center or any other private property in New York State, slap on a few gallons of paint, and then sue the owners of these buildings if they in any way interfere with my “art?” That the only exception would be if they want to tear down their edifices and start building anew? Why does the word “preposterous” spring so readily to mind?

This is nothing less than a horrid perpetuation of injustice. Not even the Nazis or Soviets, or Communists of any stripe, to the extent they allowed for any truly private property dwellings, would allow any such goings on. Yes, some people can appreciate graffiti art, but this is no excuse for legalizing trespass. Such drawings should be limited to buildings owned by the artists themselves, or who have the permission of the owners, as in the Wolkoff case.

Why stop at just structures? Why not allow this desecration of cars too? Graffiti on automobiles can be just as much a “public good” as it can on edifices. Reaching further for more reductios ad absurdum, we could include other people’s shoes, boats, clothing, etc. We can go even further. Do not tattoos edify and entertain some members of the public? Of course they do. So far, this practice has been limited to those who want them on their bodies, on a voluntary basis. But if we extrapolate just a bit and expand this pernicious law, it can also be applied to other people’s actual persons. Welcome to the wonderful world of trespass tattoos!

The graffiti law must go. And the people responsible for its passage? They should be voted out of office.

Now if, and to the extent that it actually occurred, if Mr. Wolkoff “made a deal with” graffiti artists, then, of course, any rational law system would require that he stick precisely to it. That, too, is part and parcel of the free enterprise system, the only one compatible with a civilized order. It matters not one whit that the graffiti artists might be scruffy, or reprobates, or, upon other occasions, guilty of trespassing their art onto the property of other owners. A deal is a deal. And if his whitewashing of their artistry was incompatible with the contract he made with them, then all bets are off. He should be held to it. Suppose his arrangement with them did not allow for him to destroy his property and build anew. Still, he should be made to honor his commercial agreement. If he wants to get out of it, there is only one honorable way to do so: buy them out, on a voluntary basis.

Contracts lie at the very foundation of the free enterprise system. Just laws, and just courts, will uphold them, without any fear or favor. And this applies even if the graffiti artists follow regressive (I refuse to call them “progressive”; if that is progress, I want no part of it!) policies, as I suspect is true for most members of this subculture.

This originally appeared on The Libertarian Institute.

Reprinted with the author’s permission.