I Walk the Line
Here’s a cautionary tale for those who might think it’s all fine and dandy to destroy what you own without infringing another’s intellectual property rights or impugning their reputation. Turns out it’s not alright. At least stateside. And it may well get you into hot water, or worse, a courtroom.
The dispute goes back to 2016. Two young men, both artists, one a singer songwriter the other a visual artist met at a concert of the singer. The painter, Jacob Aaron LeVielle, presented the singer, Ryan Upchurch, with a portrait of the two men together. Upchurch bought the painting. Moreover, he commissioned others by LeVielle. Two of which are at the heart of the dispute. One of Upchurch, the other of Johnny Cash. LeVielle allegedly chased Upchurch for payment of the two pictures, but he
“…never received assurances [from Upchurch] that his works would ever be paid for or returned”.
This incensed Upchurch.
God’s Gonna Cut You Down
So much so, that he took the two pictures into his back garden and shot them up with an assault rifle (maybe not an everyday occurrence in West Sussex – but this happened in Florida). Not content with venting his spleen in private – and this was the big mistake – Upchurch uploaded the event onto social media for some 155,000 followers to tap and witness, and he auctioned off the damaged artworks to the highest bidder.
Upchurch’s music genre is one of a self-styled Country Rapper. Think ‘Hick-Hop’. Yes quite – who knew? The videos were posted on the Redneck Nation platform where the rapper has 1.4 million followers. To hammer-home his displeasure he wrote on one of the paintings:
“F**k This dudes Paintings”.
Hmmm…rapier-sharp satire this isn’t.
LeVeille was upset. To sue Upchurch he needed an angle. Along came a smart IP lawyer, Joel Rothman, waving the little-known statute the Visual Artists Rights Act 1990 (VARA). A curious Act that gives certain artists limited “moral rights” over paintings they no longer own such as artists responsible for single or limited-edition paintings, drawings, photographs, or sculptures.
The Act provides,
“…the author of a work of visual art…shall have the right…to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his of her honour or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.”
VARA had been used effectively in the 5Pointz graffiti case where a developer who whitewashed a graffiti complex was ordered to pay $6.7 million to 21 artists whose work was destroyed. Rothman reckoned VARA was just the tool for the job against Upchurch.
On behalf of his young artist client, Rothman claimed of LeVeille that his:
“…unique paintings of country musicians have achieved growing acclaim among visual artist and country music afficionados”
and alleged Upchurch:
“…intentionally mutilated [his] works…for purposes of damaging [his] honour and reputation, and the reputation of [his] art…by firing tens if not hundreds of rounds from a shotgun and an automatic assault rifle” at the paintings.
LeVeille sought damages, any profits Upchurch had made from the sale of the mutilated paintings, attorney’s fees, and court costs.
It’s worth mentioning there was a defence against the VARA action available to Upchurch. One of fair use of the artwork. Given the public mutilation Upchurch inflicted, the ‘fair use’ defence never really flew.
Rothman said of his client that he hoped for,
“…some vindication for the destruction of his works…he’s a young artist who has tremendous talent.”
And, it must be said, the foresight and wherewithal to hire a good lawyer.
Forty Shades of Green
Or ‘greenback’ in this case. As of 18th October, just past, this case was heading for trial. A few hours later it was reported the two artists had reached a deal to settle the matter. Probably sensible.
Cry, Cry, Cry
So, next time you feel inclined to wreck an artwork you own, do it privately and weep alone for its loss.
OPUS Underwriting Limited
+44 (0) 203 920 9985
Researched by Ben Fairclough