FIFA Spat Over Dallas Whale Mural Tests Power of Artists’ Rights

A dispute over the destruction of a nearly 30-year-old mural in downtown Dallas ahead of the FIFA World Cup is bringing to light a law at the intersection of intellectual property and real estate rights.

Wyland’s 1999 “Ocean Life” mural wrapped around the walls of an eight-story building, depicting whales jumping in and out of water. Now only one side remains intact.

The artist alleges Fédération Internationale de Football Association, building owner Slate Asset Management, and their affiliates violated the Visual Artists Rights Act of 1990 by destroying much of his mural in May in an attempt to add work promoting the World Cup. The Dallas-Forth Worth area is hosting nine matches for the tournament.

“If this is allowed to happen to a world-renowned artist on this scale, then all public art in America is at risk,” said Nick Roide of Kessler Collins PC, Wyland’s attorney. “There’s a lot at stake here, more than just a specific mural.”

Wyland’s June 1 lawsuit filed in the US District Court for the Northern District of Texas is seeking at least $25 million in damages against FIFA, Slate, and their affiliates under the law, which grants “moral rights” of attribution and integrity to artists at the time a work is created.

VARA was enacted to bring the US into compliance with the Berne Convention for the Protection of Literary and Artistic Works, said Deborah Gerhardt, a professor at the University of North Carolina at Chapel Hill Law School.

Gerhardt said the copyright-focused Berne Convention placed the US more in line with European countries by giving protection to fine art works and giving more control to artists over how their creations are used. VARA applies to works that have no more than 200 copies and are considered recognized works, she said.

FIFA declined to comment, directing inquiries to the North Texas FWC Organizing Committee, which also declined.

Moral rights give artists the power to hold someone accountable for mutilating their art or changing it in ways that make the work so different than the original creation, Luke Nikas of Quinn Emanuel Urquhart & Sullivan LLP said.

Works in public spaces—like the Dallas mural—raise concerns about protecting an artist’s rights and historical works, but also the ability of a building owner and city to change public art to evolve, Nikas noted.

“It’s incredibly important for building owners to recognize that art brings texture and character and beauty in spaces that might not otherwise have any of those things,” Nikas said. “And for artists, the opportunity to be able to do that for a city and get that type of exposure daily is incredibly important and valuable.”

‘Interesting Tension’

An artist’s VARA rights last their lifetime and aren’t erased if a new owner buys the building, Austin Padgett of Troutman Pepper Locke said.

The statute absolves building owners of liability if an artist signs a document waiving their rights or acknowledging that art incorporated into a building could be subject to destruction if removed, or if a landowner provides a 90-day notice allowing the artist to save their work, said Peter Karol, a professor at Suffolk University Law School.

“There’s some really interesting tension between real property and intellectual property because courts generally like to promote development,” Karol said.

Rusty Close, also of Troutman Pepper Locke, said some may think the landowner’s rights are paramount, but VARA is based on a mindset focused more on the artist.

Wyland’s lawsuit says he wasn’t contacted before the majority of the mural was destroyed, nor did he give consent.

“Though FIFA claims they were working to develop art for the host city, in truth, they defaced an historic fixture of the host city,” the complaint says.

A Slate spokesperson said in an email statement that the local host committee and a Dallas development advocacy group requested that the building wall be donated for a new art installation. The group told the building owner that Wyland was contacted, the spokesperson said.

If a suit is successful, numerous factors could influence the amount of damages, Nikas said. They include considering the artwork’s value to the community, the notoriety of the artist, the reason for destruction, whether there was any preservation, and if the destruction was done maliciously.

A New York federal judge, for instance, in 2018 ordered a developer to pay $6.75 million for willfully destroying 45 pieces of graffiti art at the 5Pointz Aerosol Art Center, Nikas said. The US Supreme Court allowed the ruling to stand.

Artists could also receive fees for restoration and reputational harm, attorneys’ fees, and possibly an injunction, Padgett said.

Landowner Awareness

Padgett said he would advise landowners to do research when deciding to buy a building containing art, including identifying the artwork and determining whether there’s an existing agreement.

“If I’m the building owner, I want to get to know this artist and make sure we have some sort of communication level of understanding about what needs to be done because artwork needs to be kept up,” he said.

It’s already becoming more common for landowners to request that artists waive their rights before creating a work on a property, and it can be difficult to refuse where property owners want flexibility, Nikas said.

Some artists may have leverage to convince a building owner to enter an agreement concerning what could happen in the future, including a monetary amount in the event of destruction.

“They’re going to say I would like to get this all in writing. I would like to get an agreement in place,” Close said. “That’s great for them to want to do those things, and it is the right thing to do, but they may not have a lot of leverage to put the terms in their favor at the end of the day.”

Carrington Coleman Sloman & Blumenthal LLP represents Wyland in the litigation.