October 07, 2020

In this article, Partner Susan J. Kohlmann and Associate Jacob L. Tracer analyze a potential exception developing in the courts to the principle that copyright law does not generally protect famous artists more than lesser-known ones.

The authors note that this exception relates to rights attached to works of visual art under the Visual Artists Right Act (VARA). “Recent developments in two long-running art disputes in New York demonstrate both why VARA might operate differently than other, traditional applications of copyright law and why considering arguments about the fame of a visual artist outside the scope of VARA can undermine the policies supporting those traditional applications,” the authors write.

The developments in question are the Second Circuit’s landmark opinion in Castillo v. G&M Realty LP—more commonly known as the 5Pointz case, based on the name of the former graffiti mural space at the heart of the case—and the September 15 oral argument in the Second Circuit in The Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith.