Wisconsin Murals and Visual Artists Rights Act of 1990

Frank Juárez

Since 2015, a renaissance has sparked in Wisconsin with the number of murals being funded and created across the State of Wisconsin by local and state arts organizations, city tourism bureaus, business improvement districts, galleries, small businesses, and private corporations. We often hear the term gentrification in the art world and have either seen, heard, or read the unfavorable outcomes that it has had on an art community. We have seen or heard about corporations, luxury brands, and agencies stealing artists’ creative work for their marketing purposes and financial gain. Being selected to create a mural can be such an achievement and can open the doors to other opportunities. I wonder if muralists think about the potential outcome of creating a mural in a public or private space, understand how the Visual Artists Rights Act is exercised after completion, and how they can protect their integrity, reputation, and work. Since public and private funding is a key ingredient in realizing murals of all sizes that exist within urban, rural, and suburban locations, what measures are put into place to maintain the integrity of these murals, protect muralists’ rights, and prevent copyright infringement? I completely understand that public art such as murals cannot be protected from others capitalizing on their use, but what I do not understand is how art that lives in a community is seen as fair game.  Since murals are in the public realm, do people assume that they can use them for their personal use? Do they realize that these murals are copyrighted and that using them without the consent of the muralists is illegal and unethical?

Doing a semi-deep dive into the mural culture that exists in Wisconsin will provide some insight into having a better understanding of how entities can protect the creative work that they invest in and how the VARA can continue to be protected by contractual language. Creating a timeline as to when murals have started to gain serious attention in Wisconsin will guide my exploration into the growing mural culture that exists in Northeast, Southeast, and South Central Wisconsin.

Years ago, I heard a story about how the idea of Black Cat Alley originated, which turned out was not 100% true. I reached out to UW-Milwaukee faculty member Tim Decker. The idea of Black Cat Alley began in 2012 when Decker was walking through the alleyway between Prospect Avenue and Farewell Avenue to go to the Kenilworth Building. This alleyway was dark, dirty, and unsafe with drug abuse, robbery, and other illegal activity. As he walked through the alleyway numerous times, he saw potential. The question of “what if” emerged. The vision was to find a way to transform a neglected public area into a safe space with art that many can use especially UW-Milwaukee students. This would become known as named Black Cat Alley which is named after UW-Milwaukee’s Panthers. The goal was to recruit the Peck School of the Arts and MATC, however, there was no interest. There was interest from the Eastside Business Improvement District. But he was told to get more support from local businesses. In 2013, he reached out to Stacey Williams-Ng who owned and operated Wallpapered City, a Milwaukee-based mural agency. Williams-Ng was interested in this potential project. Through her guidance and expertise, Decker learned about grant writing. This resulted in receiving grant support. Black Cat Alley officially became a reality in 2016. Although the original intention of this public space was to showcase local art, it quickly grew to include murals by local, national, and international muralists.¹

Before

Since then, Black Cat Alley has gained the attention of multiple Wisconsin cities as a model of transforming a public space into a work of art that embraces creativity, community, and city pride celebrated by muralists, community members, local business owners, business improvement districts, tourism departments, et cetera. Turning an exterior wall of a building into an art destination can be a thing of beauty and social media frenzy. It can also lead to unforeseen circumstances such as controversy, destruction, copyright infringement, commercial, and financial gain.  

Mural proposals go through a selection committee and selected muralists receive a contract. In preparation for the execution of the murals and the grand unveiling of Black Cat Alley in 2016, everything was good to go. Being at the opening of Black Cat Alley was such an amazing experience and the turnout was well-received with hundreds of people in attendance. Murals have varied intentions expressed by the muralists’ vision expressed via their proposals. Unfortunately, a selection committee cannot foresee potential problems, concerns, or even controversy. Once a mural is executed in a public space, there is no control as to how the community will respond and engage. 

At the beginning of my interviews with muralists and entities, I asked if they had heard of VARA. VARA stands for Visual Artists Rights Act. They unanimously said no. They have heard about copyright and copyright infringement. In 1987, there was an important lawsuit Serra vs. Government Services Administration (G.S.A) that impacted the artist’s rights. The case involved the dismantling and removal of Serra’s sculpture Tilted Arc from the onsite location where it was created without the consent of the artist. Tilted Arc was a site-specific sculpture that was located in the Federal Plaza in Manhattan, New York. 

The Visual Artists Rights Act of 1990 is an extension of the 1976 Copyright Act to grant statutory moral rights to artists over their work. 

VARA grants artists as copyright holders these exclusive rights in their creative works:

• right to claim authorship;
• right to prevent the use of one’s name on any work the author did not create;
• right to prevent the use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation;
• right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation.

Anyone who creates art knows that giving credit to the source is a necessity and ethical. I have only known about copyright infringement. The introduction of VARA presents the opportunity to think deeper about the creative work that muralists create and how important it is to know that they have more rights than they know. 

In 2016, there was a mural that resulted in controversy over its content. The mural was viewed as a racial stereotype of an African American man wearing an orange prison suit. According to the muralist, Adam Stoner, this was his first and only mural. Before creating the mural, Stoner worked in an alternative incarceration minimum detention facility for juveniles as a chaplain. He intended to bring attention to the high percentage of incarcerated African American men in Milwaukee in comparison to other cities.² If the role of art is to open minds, push boundaries, and create dialogue, then German urban artist Andres Von Chrzanowski (a.k.a. CASE or CASE Maclaim) has done just that with his massive mural in the heart of Milwaukee’s Third Ward. ³ During the controversy there was an opportunity to speak about the mural and in no way, shape, or form was it meant to contribute to the oppression of the African American community. In this case, Stoner exercised his right to speak publicly about the mural. And, in the best interest of BIPOC communities, destroying the mural was a necessity, which was decided by the Eastside BID. “For many, this mural was a painful reminder and as such, was a trigger. But it was also an educational piece, and for that reason alone, it was an opportunity for dialogue,” Williams-Ng wrote in a Facebook post. “Sadly, that opportunity has now been destroyed, and we will all have to find other ways to fight this injustice and to keep the discussion going.”⁴ Even with checks and balances, one never knows how the community will respond once a mural is in the public’s eye. The mural was eventually covered up with a flower motif mural. Of course, each of these terms is highly contested, and unraveling their complexity brings into question not only the notion of urban art as public but also of urban public space itself and how it is negotiated by various social groupings within it.⁵ Due to the nature of the subject matter, the scale, and location of the mural can spark concerns, but what happens when it is intentionally used in the form of merchandise and promotional materials without the consent of the muralist(s)? 

A Manitowoc-based muralist, Erin LaBonte, said that she views her mural work as belonging to the community.⁶ At the beginning of the interview, I explained what VARA is. I provided her with examples of past cases where muralists’ rights were violated and the legal actions that were taken. This allowed us to set the tone of the interview. As the conversation continued there was a moment when she remembered a couple of past incidents that had happened to her and her mural work. One example is when a non-profit arts organization used one of her murals for a t-shirt design as a fundraiser. When it first happened, she did not think twice about it. However, her mural design was repeatedly used year after year resulting in the design being altered without her consent and used for raising program funds without compensating LaBonte. The second example is when a local visitor bureau used several of her murals in promotional materials without reaching out to her for consent. In addition, she was not given credit for her creative work and could have possibly lost income. She loves to involve the community in her mural work. The art of collaboration and beautifying her community is a positive thing. But I often wonder how far a muralist will go to defend his/her/their rights. Education is such an integral part of any contract. If a mural is in public, it does not mean that someone else can profit from it. If the heart and soul of a mural are used for financial gain, then it is engaging in copyright infringement.  

Erin LaBonte

In 2018, Milwaukee-based muralist, David Najib Kasir, painted his first mural at Black Cat Alley. This mural depicts a woman carrying one of her children alongside another child. He recollects a couple of incidents where his mural was vandalized with spray paint and the other was when he caught someone photographing the Black Cat Alley murals. Turns out that the person photographing the murals was reproducing these murals as his photographs and selling them. Luckily, Kasir was able to confront him and threatened him that he would contact his gallery’s lawyer. In the first incident, the Eastside BID contacted him about the damage to his mural. This was the appropriate way to address this misfortune. In regards to the second incident, although he was able to prevent his work from being used for financial gain, it is unsafe to confront someone you do not know. Kasir does realize that murals in public are a gamble and that they are used as backdrops for social media, events, et cetera.⁷ Another Milwaukee-based muralist, John Kowalczyk, recollects his Black Cat Alley mural being vandalized as well. Once again, the Eastside BID contacted him, and he was able to fix his mural. This time a special coating was applied to protect it from further damage. Since 2016, several murals have been altered or destroyed in Black Cat Alley.⁸

David Najib Kasir

John Kowalczyk

In 2020, an art event called Art Infusion in Janesville, Wisconsin, started to include murals in their annual event’s art programming. I attended the 2022 Art Infusion. I was impressed by the caliber of the murals. I reached out to the marketing director of the Janesville Convention and Visitor Bureau, Sue Melton. In the interview, I was interested to learn how muralists are credited for their creative work. She said, “Beyond the common Instagram handle that we often see on murals, we have placed plaques at the mural sites that credit the artist and provide a QR code that leads to an audio description of the work in the voice of the artist. We credit the artist on our website and social media, in brochures, and most advertising. We continue to promote the artists and their works long after their visit to Janesville”.⁹ Though advertising and promotional material is expressly excluded from VARA protection,¹⁰ a Second Circuit judge has also said (albeit only in a concurring opinion) that “there is nothing that suggests that a work originally created for the purpose of promoting an event, product or cause could never, over time, achieve the status of a work of recognized stature and thus be deserving of protection under VARA.” ¹¹ Copyright law currently protects art used in advertising, and this may well be the new frontier in VARA litigation.¹²

Art Infusion

Jillian Talarczyk, Madison Public Art Project Executive Director stated that MPAP has an artist contract that is used so that the scope of the work and timeline is clearly defined. The artist is the sole owner of the intellectual property and artist copyright. The muralist is featured on the website and often has signage at the site location to explain the project and credit the artist. Through its contract, it has a team that monitors the maintenance of the work, so it can alert the artists if any vandalism, weather, or repairs will be needed. MPAP is in close contact with the artists to ensure their work remains intact as the work ages.¹³

Locations such as Black Cat Alley and the Beer Line Trail in the Riverwest neighborhood in Milwaukee have encountered similar incidents such as vandalism. Unfortunately, this is a reality of public art. If a mural was vandalized, most of the muralists that I interviewed were provided the opportunity to address it. It is important to include the muralists in any conversation relating to their creative work. 

There are local and state arts organizations, city tourism bureaus, and business improvement districts that understand the proper way to credit and protect artists. Muralists are paid for the creative work, and not paid for other uses nor receive compensation from the murals after completion due to contractual language that is agreed upon by both parties.  

It has become common practice to establish ownership by including an Instagram handle on a mural. Often, this results in the muralists being tagged on social media. However, the fact that these muralists did not know or have not heard about VARA is concerning. To be honest, I have not heard of it either. When I explained VARA and shared examples of past cases in which artists’ rights were violated such as Serra v Government Services Administration (1987), 5 Pointz Muralists vs G & M Realty (2018), and artists Daniel Bombardier, James “Dabls” Lewis, Jeff Soto, and Maxx Gramajo vs Mercedes (2018), specific examples that have happened to them emerged during our conversation. I realize it is difficult to monitor murals for vandalism, copyright infringement, or profiting from the murals. Muralists can protect themselves through contractual language. Applying a Creative Commons license to their creative work, changing the title of “artist” to “independent contractor”, and adding the following line items to a contract such as modification procedures, media, ownership rights, and reproduction can cover all the bases that are necessary to ensure that the muralist’s integrity, reputation, and work are protected and intact. The right of attribution establishes rules about identifying authorship of works, while right of integrity establishes rules related to the modification works.¹⁴ Placing a Maintenance and Repair line item into a contract can provide the muralist with the option to either fix or remove the mural if it cannot be repaired. If a decision was made to fix the mural, then a fee would be paid to the muralist for any repairs according to the contract. 

Education and negotiation are such an integral part of being a muralist. The terms of the contract are those reached by the negotiation. A few basic observations will help the artist negotiate successfully. The purpose of negotiations is not to defeat the other party. Rather, both parties should benefit and feel satisfied that their needs have been met. Before beginning any negotiation, the artist should have his or her goals clearly in mind. These goals certainly include money, but reach beyond this to issues of artistic control, authorship, credit, and other factors that may also have importance for the artist^{. 15} The heart and soul of this action research paper lie in communicating that muralists have more rights than they may have experienced. Unfortunately, sometimes pay trumps whatever happens afterward.¹⁶ Using my voice as a creator, art educator, and publisher of a regional art magazine hopefully encourages muralists to ask more questions and to think about their integrity, reputation, and creative work in the long term before signing a contract. 

Dale Knaak

A Mural Contract

Artdose Magazine created a mural contract that advocates and protects artists’ creative rights. Artdose Magazine does not claim to have expertise in designing contracts. We consulted an attorney for guidance.

The mural contract was in response to the action research conducted above.

Works Cited

¹  Decker, Tim. Artist. Phone Call Interview. December 7, 2023. 

² Stoner, Adam. Zoom Interview. November 11, 2023.

³ Snyder, Molly. Headless Woman Mural Stirs Controversy, OnMilwaukee, 24 Aug. 2019, onmilwaukee.com/articles/mural. 

⁴ Higgins, Jim. “Controversial Mural in Black Cat Alley Destroyed by Vandal.” Journal Sentinel, Milwaukee Journal Sentinel, 8 Nov. 2017, http://www.jsonline.com/story/entertainment/arts/2017/11/07/controversial-mural-black-cat-alley-destroyed-vandal/842399001/. 

⁵ Cartiere, Cameron, et al. “THE EVERYDAY PRACTICE OF PUBLIC ART: Art, Space and Social Inclusion.” Routledge, 2016. 

⁶  LaBonte, Erin. Zoom Interview. October 14, 2023. 

⁷  Kasir, David Najib. Zoom Interview. November 1, 2023. 

⁸ Kowalczyk, John. Zoom Interview. October 30, 2023. 

⁹ Melton, Sue. Janesville Convention and Visitor Bureau. Email Interview. November 13, 2023.

¹⁰ See 17 U.S.C. §101A(ii).

¹¹ Pollara v. Seymour, 344 F.3d 265, 271-72 (2d Cir. 2003). 

¹² Bleistein v. Donaldson Lithographing, 188 U.S. 239, 251 (1903) (“a picture is none the less a picture, and nonetheless a subject of copyright, that is used for an advertisement”).

¹³ Talarczyk, Jillian. Madison Public Art Project. Email Interview. November 15, 2023.

¹⁴ Morrissey, Michaela S. “Copyright Takes to the Streets: Protecting Graffiti under the Visual …Michaela S. Morrissey.” E Streets: Protecting Graffiti Under the Visual Copyright Takes to the Streets: Protecting Graffiti Under the Visual Artists Rights Act Artists Rights Act, University of Richmond Law Review University of Richmond Law Review, 1 Jan. 2020, scholarship.richmond.edu/cgi/viewcontent.cgi?article=3331&context=lawreview. 

¹⁵ Crawford, Tad. “Legal Guide for Visual Artists”, Allworth Press, New York, 2010, pp. 105.

¹⁶ Knaak, Dale. Audio Interview. October 31, 2023.

Bibliography

Print Sources

Cartiere, Cameron, and Martin Zebracki. “PLACING MURALS IN BELFAST.” The Everyday Practice of Public Art: Art, Space, and Social Inclusion, Routledge, Taylor & Francis Group, London, 2016, pp. 45–62. 

Crawford, Tad. “Legal Guide for Visual Artists”, Allworth Press, New York, 2010, pp. 105

Wolosky, Olshan Frome. “When Art Meets Building: A Primer on the Visual Artists Rights Act.” Olshan Frome Wolosky, 30 June 2014, http://www.olshanlaw.com/when-art-meets-building#:~:text=When%20Art%20Meets%20Building%3A%20A%20Primer%20on%20the%20Visual%20Artists%20Rights%20Act,-Save%20items%20to&text=The%20federal%20Visual%20Artists%20Rights,%2C%20of%20%22recognized%20stature.%22. 

Online Sources

Molly, Snyder. “Headless Woman Mural Stirs Controversy.” OnMilwaukee, 24 Aug. 2019, onmilwaukee.com/articles/mural. 

Higgins, Jim. “Controversial Mural in Black Cat Alley Destroyed by Vandal.” Journal Sentinel, Milwaukee Journal Sentinel, 8 Nov. 2017, http://www.jsonline.com/story/entertainment/arts/2017/11/07/controversial-mural-black-cat-alley-destroyed-vandal/842399001/.          

Morrissey, Michaela S. “Copyright Takes to the Streets: Protecting Graffiti under the Visual …Michaela S. Morrissey.” E Streets: Protecting Graffiti Under the Visual Copyright Takes to the Streets: Protecting Graffiti Under the Visual Artists Rights Act Artists Rights Act, University of Richmond Law Review University of Richmond Law Review, 1 Jan. 2020, scholarship.richmond.edu/cgi/viewcontent.cgi?article=3331&context=lawreview. 

Primary Sources

LaBonte, Erin. Zoom Interview. October 14, 2023.

Kowalczyk, John. Zoom Interview. October 30, 2023.

Knaak, Dale. In-person Interview. October 31, 2023.

Kasir, David Najib. Zoom Interview. November 1, 2023.

Melton, Sue. Janesville Convention and Visitor Bureau. Email Interview. November 13, 2023.

Talarczyk, Jillian. Madison Public Art Project. Email Interview. November 15, 2023.