Too bad that on Oct. 5 the Supremes passed on applying a due process determination to define the “recognized stature” of art. The Visual Artists Rights Act of 1990 (“VARA”) gave visual artists limited “moral rights” in their creations. The primary right is one of “integrity,” or preventing the alteration or destruction of a copyrighted visual artwork. Artists, after all, suffer a blow to their reputation when their creations are removed or destroyed. Further, those of a decided secular, and especially European, mindset for generations substituted artistic enthusiasm for religious fervor. Top artists were viewed as merging their personas with their works. Destroying art killed a piece of a sensitive soul.

Conservatives such as C.S. Lewis and Paul Johnson, though, traced the point at which Western civilization began declining to the point at which art no longer depicted nature. The tacit observation was that a society abandoning objective standards for subjective tastes is a society in decline. Real property owners, either later purchasers of the property or disappointed commissioners, sometimes later wish to have visual art such as mosaics removed. Society’s tastes ineluctably shift with time.

In G&M Realty, the artists were “aerosol artists,” spray painting creations onto warehouse walls. The artists learned that the warehouse owner planned to have the building demolished.  The artists’ preliminary injunction was denied. Before trial could be had, the warehouse owner whitewashed over the creations. The advisory jury found that 36 of the creations were of “recognized stature.” They recommended damages of $1.20 million. The trial court disagreed, finding that 49 works should belong to that esteemed category. The court also upped the damages award to $6.75 million. Tagged with a large statutory damages award for whitewashing graffiti art, G&M Realty was inspired to find a creative defense. In enacting VARA, Congress did not define what constituted a work of recognized stature. G&M Realty argued that the law was too ambiguous to provide notice needed to comply. No notice, no due process, and a violation of the U.S. Constitution’s Fifth Amendment’s “takings” clause. Voila! The penalty for Philistinism would have been shifted back onto the taxpayers.

In an age when an artist’s three-foot-high stainless-steel rabbit sold for $91 million, consensus as to value is elusive. Plato asked, “what is beautiful?” He thought it universally recognizable. Modern man observes that “beauty is in the eye of the beholder.” Society continues marching towards the view that each “man is the measure of all things.” Recognized stature remains the coin of the realm. May the very best art and valuation experts win.