What distinguishes public art is the unique association of how it is made, where it is, and what it means.” The Association for Public Art

To many, the names “Rocky Balboa” and the “Italian Stallion” are as universal and front of mind as the names “Chuck Wepner” and the “Bayonne Bleeder” are regional and tucked into (or have already fallen out of or never made it into) the recesses of memory.  But this writer is not most people.  Though aspiring to be a child of the universe, I am at heart still a ten-year-old kid from Bayonne, New Jersey, at the south end of Hudson County who (in 1975) thought a guy from our neighborhood was about to pull off the greatest upset in sports history (at least in the pre-Miracle-on-Ice/before-Jimmy-V era).

You see, in the 9th round of the heavy weight championship fight that would inspire Sylvester Stallone to write Rocky (and Chuck to sue him on a right of publicity claim that later settled), Chuck Wepner knocked down Muhammed Ali (Really, you can see it for yourself).   Though Chuck’s dreams of wearing the crown and earning lots of money were short-lived after the GOAT got up furious, everybody in Bayonne (and wherever Stallone was) felt like a million bucks during those few moments of believing—including both the struggling actor and a ten-year-old that would later write for an IP blog.  But this isn’t about Wepner v. Stallone—this is about what curiously happened more recently when Chuck Wepner’s hometown wanted to honor him in various ways.

In 2015, the City of Bayonne unveiled a Chuck Wepner mural organized by the city’s Community Development Office, and led by artists Nicholas Macchia and Nestor Uraga.  Unveiling of Chuck Wepner Mural in Bayonne, NJ.COM, March 21, 2015.  After its museum unveiling, the city sought a place to display it, and settled upon a large otherwise blank wall on four-story building at the corner of 33rd Street and Broadway, a building that had Andrew’s Café on the first floor.  When the city asked the café owner whether there was any objection to having the mural grace that wall, the answer was “No,” so up it went:

[Agreement reached in Chuck Wepner mural mistake, Hudson Reporter, July 21, 2015]

But the owner of the café was not the owner of the building, and this very public piece of art was also now potentially something to be taken down because the building owner did not like it.  Eventually, the property owner and the city worked out a deal to leave it up for three years, and it remains up today after more than three years.

But this got me thinking about how it is made, where it is, and what it means, which is what public art is about, right?

It was made through artistic efforts coordinated by the municipal government.  This was an undertaking in which governmental employees receiving public paychecks spent salaried time working with volunteers and other to oversee artists creating a publicly commissioned work. Being made in that way through that process, one must consider what rights the public had in it through some shared or common sense of ownership.  So maybe the public does in fact own, or at least can exert control over, this public art.  Cathay Smith has certainly catalogued numerous theories under which there may be community rights to public art, and they are worth identifying.  She goes beyond United States’ Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A, and multiple state and local historic preservation laws and ordinances to note that the public is often accorded rights through common law as well: implied public dedication, public prescriptive easement, and public trust doctrine are just a few of those means.

But such sense of “ownership” or “interest” is abstract, and non-immediate.  Once art was created and put in a specific space, the rights of artists and property owners somehow seem more immediate and tangible.  While the public has some claim of rights, of course, the property owner has some rights, which may trump the artist’s and the public’s.  Indeed, the National Register of Historic Places Program notes that listing places no obligations on private property owners. There are no restrictions on the use, treatment, transfer, or disposition of private property, does registration lead to public ownership or require public access. Indeed, a property will not be listed if, for individual properties, the owner objects, or for districts, a majority of property owners object.  Though the Wepner mural saga hit close to home (literally, this is three blocks from my house), it was also a much more common problem.  It is one that we have seen not only in the United States, but in Sweden, and one that we have seen in cases where graffiti artists took on real estate developers, and a Wall Street bull was pitted against a fearless girl.  While one can speak to the inherent meaning a piece of art has within in itself, we must also know that art sometimes finds some portion of its meaning from its surrounding, justifying through juxtaposition its message or interpretation.  In other words, where it is may help determine what it means.

So how should we look at who owns and controls the use of so-called public art?

There certainly is a tradition that the owner of the property on which the art sits has that control.  The City of Bayonne recognized that, at least implicitly, in seeking permission (mistakenly from the non-owner) before putting up the Wepner mural, and this tradition went back to at least the 1930s when the Rockefellers felt free as property owners to destroy the Man at the Crossroads mural that they had commissioned for the lobby of the RCA Building, as reported in the press.  The work “was chiseled off the wall without warning or notice,” and “broken into pieces before being carted away and dumped”–they were never punished for what many claimed was “art murder” or “cultural vandalism,” according to one commentator.  This sort of presumptive right to art running with the land as it were was also seen more recently in the United Kingdom after the painting “Slave Labour” “was installed without permission in a public location on a private building,” a discount store in North London in May 2012; when the painting became popular and well known, the property owner cut it out of the wall and sold it for over half-million dollars.

One may naturally suggest that the artist retains rights in the art, and should therefore have some control over what is done or not done to it.

That is at least one implication of the United States’ Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A, and the damage award make to $6.75 million damages award given to the graffiti artists in the 5Pointz case after a real estate developer willfully, and according to the court, prematurely destroyed “a prominent tourist attraction” made up of “formidable works of aerosol art,” that existed in  “this outdoor museum where kids can touch the wall, and .. you can’t do that at a museum. You can’t go and touch a Van Gogh or like a Mona Lisa.” But that very court in the same opinion said that “If he did not destroy 5Pointz until he received his permits and demolished it 10 months later,” it would have awarded little if anything to these artists, and that court had five years earlier held that the “plaintiffs were not entitled to a preliminary injunction under the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A, to prevent the destruction of their paintings that adorned the exterior of the buildings owned by the defendants, which are scheduled for demolition.” So how much do the artists actually control, especially in the United States with its almost not existent recognition of moral rights.

And is the recognition of such rights actually protective of the art and the public?  Certainly in the 5 Pointz case it might have been.  But elsewhere, not so much.  In Sweden, for example, the Supreme Court faced the question of “whether an artist of a work permanently placed in a public location has the right to restrict online communications depicting that art?” and answered it in the affirmative.  As that commentator put it, this is “a major blow to freedom of panorama, the right to make and use (including publishing) pictures of public buildings and sculptures without being subject to copyright infringement…ruling means that Sweden now does not allow anyone — even people who want to post vacation photos — to put images of public art online without first obtaining permission from the artist. ‘We believe that this ruling undermines the fundamental purpose of the freedom of panorama: the right for people to capture and share, online or otherwise, the beauty and art of their public spaces,’ Paulson writes, before going on to point out that Swedish law does allow for images of public art to be reproduced on postcards, ‘even for profit and without the artist’s consent.’”  Such a stance could frustrate other artists, such as movie makers, who might feel unable or unwilling to risk depicting famous public art or architecture, and would seem contrary to concepts of fair use in any event.  It might also embolden those like the owners of the new Hudson Yards’ edifice in New York City who sought to impose automatic use rights on any photograph taken of the Vessel (They backed off after public outcry, but these efforts to enforce intellectual property rights through what is stated on backs of tickets to venues or events continue, and are no joke.).

But is protecting the rights of the second artist (like the photographer or movie maker) the right precedent to set?  This too can be troublesome because sometimes the second artist cannot go beyond profiting from the first artist’s work—by selling photos as postcards of the famous sculpture or the like.  Sometimes the second artist can alter the perception and understanding of the first piece art, as happened in the case of the Fearless Girl.  Before she was placed in front of the Bull sculpture, the iconic piece by Arturo Di Modica had been created “as a symbol of American financial resilience following the 1987 stock market crash.”  It did not seem commonly understood, before 2017’s appearance of the Fearless Girl, as a symbol of unequal opportunity for women in the financial or other industries. After they were placed together, however, Di Modica objected that “his artwork’s meaning had been distorted and turned into a symbol of sexism.” And so, it rightly raises the question of whether the second artist, or the public or its representatives, have the “right to hijack an artist’s intention and distort his work’s actual intent to send an entirely contradictory message.”  Perhaps more, or at least as much, a question of philosophy than law, in the end art is supposed to evoke and provoke, and reimagining, discarding and transforming old interpretations and meanings is part of new art, and probably should not be suppressed.  That is at the heart of what we recognize as a transformative use, which has been recognized, as least in the modern era, as non-infringing art but which is nonetheless an evolving concept.

Ultimately, the question often becomes whether these various doctrines clarify or camouflage the ambiguity of exactly what public art is:

With respect to “public art,” an examination of the state of the question points to at least two ways in which that concept may be defined, two “circles” within which it may fall: it may be related either to the space the art object is to occupy (which might be called a “public space”) or to the art object itself (which might then be called “public art”). Here, we might pose several questions that seem either to make it easier to understand the public art/ public space duality, or to make such an understanding impossible. We might, for example, ask questions regarding legitimacy (Is the work an art object?); questions regarding the constitution of the cultural imaginary with respect to what a “public space” is and what “public art” is (Does the work reflect my identity?); questions as to the ownership of the space and the work; questions regarding authorship (Is the work created by an individual with personal title to it, or is it created on behalf of a collectivity?); questions regarding decency and decorum (Is the art appropriate to the space it occupies or will occupy, and is it suitable for being seen by men, women, and children?); questions regarding preservation and conservation (Who shall assume the ownership of the patrimonial work and be responsible for its defense, custody, maintenance, restoration, and permanence?). Each of these issues raises a debate, implicit in the very existence of the public-art object, and each debate is different.

[Lilliana Ramos Collado, Outdoors in the Sun and the Rain: The Settings for “Public Art” (2016) (emphasis added)]

And, in the end, maybe Bayonne gets to do it all over again—because evidently the Chuck Wepner mural (now living on borrowed time passed the three-year agreement with the building owner) wasn’t enough: now they are building a statue, and it is being funded with donations from the public:

[Sculpt Me  A Hero, Hudson Reporter]

Not sure if that means that the public will own it, or think that they will.  Or if the artist (Bayonne-based sculptor Zhen Wu) will, or thinks he will. Or the subject (Chuck himself) will, or thinks he will.  What I am sure of is that there might be as many arguments about that as there are about whether it was a knockdown or a trip in the 9th round of that fight in 1975. But I am from Bayonne, and will always say it was a knockdown (even if he tripped him)—and a knockdown is “the way it stands in the record books.”

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