THE RIGHTS OF AN ARTIST IN THE FACE OF DESTRUCTION

October 27, 2025 by Dylan Smith, Esq.

In July 2025, the U.S. Department of Transportation announced a crackdown on painted or colorful crosswalks, sidewalks, road signs, and roadways, asserting that such works of art are “distractions.” This had long been the national policy. In 2011, the U.S. Federal Highway Administration noted “…crosswalk art [of any kind] is contrary to the goal of increased safety and most likely could be a contributing factor to a false sense of security for both motorists and pedestrians.” The DOT Manual of Uniform Traffic Devices, revised during the previous administration, warned against the use of bright colors in crosswalks and a number of bi-partisan not-for-profit organizations cautioned that brightly painted crosswalks might cause harm to pedestrians with learning disabilities or autism, guide dogs for the blind and others who might be confused. 

Nonetheless, the recent crackdown has resulted in a great deal of publicity, as departments of transportation in multiple states have joined in the campaign.  Few seem more fervent than the Florida Department of Transportation, which issued a blanket order to remove all subject works by September 4, 2025. This resulted in the destruction of several notable works, including the rainbow crosswalk placed in response to the Pulse Nightclub shooting in Orlando, removal of the “Black History Matters” mural on the street in front of the Woodson African American Museum of Florida, and the erasure of painted sidewalks making up the Avenue of Art in Sarasota. As this public erasure of art starts to anger the creators, the question becomes: What, if anything, can they do about it?

Artist’s Rights in the United States: A Primer

            While the concept of an artist having rights in his or her work beyond those inherent in copyright has been cemented in most of Europe for nearly a century, the United States generally declined to grant additional rights to an artist, instead favoring all rights to a work residing in the copyright holder. However, eventually, the public need to obtain international copyright protection began to outweigh the longstanding U.S. principle.

 The Visual Artists Rights Act (VARA), embodied in 17 U.S. Code § 106A, was passed in 1990 as a prerequisite for United States’ membership in the Berne Convention, the international treaty that establishes copyright protection standards. The purpose of VARA was to grant the creators of works of visual art “moral rights,” which include:

• the right to claim ownership, which ensures that the artist is credited for his or her work;
• the right to prevent miscrediting, which allows artists to have their names removed from works which they did not create;
• the right against impugning the artist, which permits artists to prevent the use of their names on any works which they created but which have since been mutilated, distorted, or modified in a way which would impact their reputations;
• the right to prevent distortion, destruction, and modification of an artist’s work which would prejudice the artist’s reputation; and
• the right to prevent destruction of a work of “recognized stature.”

It is this last right, the right to prevent destruction of a work of “recognized stature,” that comes into play with the most recent Department of Transportation enforcement move.

Notably, the rights under VARA are designed to survive not only the sale of a work of art to another person, but also the transfer of copyright in the work. These “moral rights” do not survive the artist, but exist only during the artist’s lifetime, and they cannot be transferred, although they can be waived. If a work is created jointly by multiple creators, all of them have artists’ rights in the work.

It should be noted that these rights only apply to “Works of Visual Art” as defined in 17 U.S. Code § 101. Works of Visual Art include paintings, prints, drawings, sculptures, and photographs, but only if the works are either a single copy or in a limited edition of under 200 copies which are signed and numbered. The definition covers murals and other wall art or graffiti. “Works of Visual Art” explicitly do not include, among other things, posters, applied art (art which has a functional purpose), motion pictures, any works which cannot be copyrighted, and works made for hire.

Where Rights Meet the Road

So, can artists assert their rights to prevent destruction by the Department of Transportation? As with most legal questions, the answer comes down to “it depends.”

With respect to the rainbow crosswalk in front of the Pulse Nightclub, the work was reportedly installed by the City of Orlando.  If that is the case, even if one city employee were to have conceived and painted it, it would still likely be considered a “work for hire” placing the City in the position of “authorship” so that no one individual would have author’s rights. Even though people have repeatedly repainted the crosswalk, since they are creating a copy of a previously existing work, VARA would not likely apply. Further, since the new crosswalks have quickly been destroyed, it would be difficult, if not impossible to establish that any subsequent version had become a work of “recognized stature.”

The Woodson Mural and the Avenue of Art in Sarasota, however, present more interesting questions. VARA doesn’t limit the location or even legality of the work of visual art when determining rights. A number of the works along the Avenue of Art, as well as the Woodson Mural, are paintings whose authors should clearly have rights under VARA. Additionally, while some of the works on the Avenue of Art are made of chalk, there is no limitation on the medium for a “drawing” in VARA, so even the creators of the chalk drawings would presumably have author’s rights. So, if an artist wants to prevent the removal of his or her creation, he or she would need only to prove that the work is one of “recognized stature.” This may be difficult, given that many of the works are very recent, but according to Leveille v. Upchurch, 2021 U.S. Dist. LEXIS 248519 (MD Fla 2021):

Generally, whether an artistic work has achieved “recognized stature” and is due the protections of VARA depends on its acknowledgment by a relevant community of the artistic quality of the work. The relevant community will typically be the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts.

Under case precedent, it appears that if the artistic community agrees that one of the works is a work of “recognized stature,” then it is likely that an artist could assert rights against destruction of the work, even though it is on a public sidewalk or street.

Another Option

One owner of an Orlando restaurant, in protest of the destruction of the Pulse Nightclub crosswalk, has come up with an alternative. Se7en Bites owner Trina Gregory offered up a number of her private parking spaces to artists. This not only grants artists a free space to create their own tributes, but also creates a space where the public may be able to appreciate the works fully for a longer period of time, which increases the chance that a given work can become recognized. Indeed, it is possible that one or more of the works in the lot may become works of “recognized stature,” which would mean that even if the parking lot were sold, the artist could stop subsequent owners from destroying the work for as long as the artist lives.

This was the case with works of graffiti art permitted by the owner of a block of warehouses in Long Island, NY. The graffiti artists, who painted the deserted warehouses known as “5Pointz” with the permission of the owner, had garnered publicity such that their works were considered to have acquired “recognized stature.” When the owner later decided to develop the property, and demolished the warehouses, VARA came into play and the owner was required to compensate the artists in the sum of $6.75 million for the destruction of their works. Castillo v. G.M. Realty, L.P., 950 F.3d 155 (2d Ct. App. 2020)

Protection for Property Owners

Should an artwork be part of their property, property owners can protect themselves against similar determinations in several ways.

First, while author’s rights cannot be transferred, they can be waived by written waiver, and such a waiver can be transferred to a subsequent buyer. If an owner is allowing an artist to create a work for the property, it is advisable to have the artist sign such a waiver. If the owner is purchasing a property which contains such a work, he or she should seek a waiver from the artist, even if the work is not then a work of “recognized stature,” because it may become recognized over time. Please note that in the case of a joint work, a waiver by one artist is a waiver by all artists.

Second, per 17 USC §113(d)(2), if a work can be removed from the building without the destruction, distortion, mutilation, or other modification of the work, the author’s rights shall not apply if the owner has made a diligent, good faith effort to notify the author but has been unable to do so, or if the owner is able to give notice in writing to the author allowing 90 days for the artist to remove the work or pay the costs of removal.

Finally, under 17 USC §113(d)(1), with works that are incorporated into a building in such a way that the work cannot be removed, the author’s rights are held not to apply if the author consented to the installation prior to December 1, 1990.