Why don’t developers give artists the notice required by law? Experts disagree. “They don’t know about it,” says A. Eric Bjorgum, who represented Twitchell in the Ruscha mural case. “They don’t recognize the value of art,” says Oliver. “Greed,” at least in the 5Pointz case, says the muralists’ lawyer Eric Baum. Legal counsel for the defendants in the Fontes case did not respond to inquiries, and the developer’s lawyer in 5Pointz declined to comment.
VARA still places the burden of removing the art on the artist—an added cost. “Once an artist gets a 90-day notice, they can’t afford to do anything,” Bjorgum says. VARA effectively favors well-off, better-known artists. “It’s the bloody truth,” says art lawyer Scott Hodes of the law firm Bryan Cave. There aren’t a lot of lawsuits, he says, because few artists can afford the legal fees. Their only other option is to “find a lawyer with so much confidence [of a victory] that the law firm is willing to front the fees,” which, if the artist wins, the judge can order the owner to pay. Further, owners often require artists to give up their VARA rights in the commissioning contracts. Only the more famous artists have the negotiating power to refuse to do that, he says.