Your rights and legal protections as a muralist in Philly
Who owns your artwork once you put it on a building? And what happens if gets painted over?
As a muralist, Michelle Angela Ortiz knows that her work won’t always be permanent. Public art uses public space that can often change, be sold, or cease to exist entirely. However, in the case of Ortiz’s iconic mural of the late Gloria Casarez — a Philadelphia LGBTQ civil rights leader — she said she didn’t expect her mural to be destroyed so callously.
“They knew by demolishing the mural as is, that would be very painful,” said Ortiz, the day after A Tribute to Gloria Casarez was covered with white paint. “They’re trying to erase their shame and guilt with the white paint, that’s what they’re trying to do.”
Ortiz created the mural in 2015 along with Mural Arts Philadelphia and the building’s owners. The building was sold to New York-based development firm Midwood in 2017. According to Ortiz, two years later, Midwood shared plans with her that the building would be demolished — destroying the mural of Philadelphia’s first director of lesbian, gay, bisexual. and transgender affairs.
Over the course of five months, Ortiz and Mural Arts worked with Midwood to reach an agreement on how the mural could be preserved or a new one be created in Casarez’s honor.
In November 2020, the parties entered a nonbinding agreement to create a new mural centering Casarez with Midwood footing the bill, and discussed plans to safely remove the mural in pieces to be restored at a later date, Ortiz said.
One month later, Ortiz received a shocking text: Midwood whitewashed the mural.
While the parties had discussed preserving the mural, it wasn’t legally binding. Midwood painting over the mural made it impossible to preserve the artwork.
It’s a story that isn’t uncommon in Philadelphia, with murals of John Coltrane, children lost to gun violence. and the Whaling Wall, to name a few, being destroyed by construction.
When a mural is created, who owns the physical artwork?
The person or entity who owns the building that the mural is created on owns the artwork itself. The physical mural that is painted, pasted, or sprayed onto a surface of a building is now a part of the building and falls under the building owner’s ownership.
Do artists retain any ownership over the mural?
Yes. While the building owner may own the physical work of art, muralists retain copyright ownership. That means the image itself is the intellectual property of the artist, who can freely promote it, sell, license, and more.
The building owner does not have claim to copyright ownership of the mural unless stated in a contract. Contracts can have the muralist, organization overseeing the project (if there is one), and the building owner share ownership of the copyright — it’s up to what is agreed upon in legally binding agreements.
What legal protections are available to muralists?
In Philadelphia, there are limited legal protections — if any — in city ordinances for muralists and their public art. The city’s Percent For Art law requires certain developers to set aside 1% of their budget for a public mural to be created on their building, but that’s not about protecting established art.
Most cases of trying to legally protect a mural come down to what is agreed upon in signed contracts.
It’s important to sign a contract with all parties involved to have any legal protections. It’s not always easy to negotiate a contract either. Organizations like Mural Arts try to negotiate such terms as requiring the mural to be untouched for a set number of years, but that is often hard to get building owners to agree to as many don’t want to turn down an opportunity to sell the property down the road.
Protections to consider when drafting a contract include:
Notifying the artist if the mural is vandalized and setting up a process for restoring it
Giving the artist advanced notice if an owner decides to sell the property
Agreements to preserve or relocate the mural if the building will be demolished
Visual Artist Rights Act
While there aren’t local or state laws that explicitly protect murals, there is a federal one.
The Visual Artist Rights Act (VARA) of 1990 is a federal law that protects artwork from being destroyed, among other protections. In its simplest form, even if an artist doesn’t own the physical artwork (like in the case of a mural), VARA gives artists the legal right to sue to prevent its destruction or be entitled to financial damages if it is destroyed. In 2018, 21 graffiti writers were awarded $6.7 million when the historic 5 Pointz open-air graffiti museum in Queens, New York, was whitewashed by its building owner.
When artists draft a contract with the building owner, they can include a clause that states one’s VARA rights. Artists should have a lawyer look over contracts, or contact Philadelphia Volunteer Lawyers for the Arts at 267-416-8940 for free volunteer legal help.
In some cases, the proposed contract will have the artist “waive” or not claim VARA rights. This means, in the case of the building or mural being modified, transferred to new owners, or destroyed, the artist is not able to pursue legal action against the other parties. This was the case in Ortiz’s contract for her Gloria Casarez mural, and she was unable to sue for damages against her work.
What happens if a mural is vandalized?
Depending on whom you worked with to create the mural, it can be as simple as calling Mural Arts or the city’s sanitation crew Community Life Improvement Program (CLIP). Murals created through Mural Arts are cleaned and restored within 24 to 48 hours of reported vandalism.
To report vandalism of a mural in Philly, fill out this form.