Whales, Walls, and World Cups: The High-Stakes Friction Between Real Estate and VARA
Introduction
A mural can transform a wall into a cultural landmark, but when that wall becomes a business opportunity, we look to the law designed to protect artists and their work. Robert Wyland, an artist who paints murals to promote the conservation of ocean life, filed a lawsuit in June 2026 against FIFA and others for $25 million claiming that their actions violated the Visual Artists Rights Act of 1990. In 1999, Wyland completed the Whaling Wall 82 mural, a 17,000 square foot mural which depicts a dual ocean view of whales, in Dallas, Texas. Fast forward to 2026, the FIFA World Cup is set to host games in three different countries, spanning 16 cities, including Dallas. The Wyland lawsuit claims that FIFA and its partners painted over the mural without Wyland’s consent. In addition, an online petition was started that gathered more than 2,600 signatures for FIFA to find a new site for their mural. The FIFA organizing committee said they wanted to create a “new piece that captures this current historical moment and reflects the energy, unity, and global spirit surrounding the World Cup 2026,” and that part of Wyland’s mural would be preserved to recognize the part it plays in the city. This dispute reveals the protection that VARA provides for artists’ work, commercial interests, and the needs of property owners. The Wyland lawsuit exposes the limitations of VARA in its notice requirements and limited financial consequences. In response to these limitations, property owners and organizations seeking to destroy artwork should adopt proactive communication, document notice, and obtain written consent to reduce the legal and reputational risk by preserving artistic and cultural interests.
Visual Rights Act of 1990
When a building owner paints over a mural without the artist’s consent, there are two sections of U.S. copyright law that come into play. General copyright law balances the protection of artists’ economic interests with the societal interest of free access and education. As part of this balance, Congress enacted The Visual Artists Rights Act of 1990 (VARA) to grant artists of visual works “moral rights.” VARA established artists’ right to “prevent any destruction of a work of recognized stature.” This includes works that “art experts, the art community, or society” believe should be preserved, however,VARA explicitly excludes marketing or advertising material.
17 U.S. Code § 113 expands the rights enumerated in VARA to visual art incorporated into buildings. Murals are one type of visual art that cannot be removed from buildings without destruction. In such a case, standard property ownership rights are constrained. Building owners cannot destroy or alter the mural in exercising their property right of exclusive control. Wilful VARA violations may incur damages capped at $150,000, but the actual cultural and commercial value of the public installation can substantially increase recoverable damages.
However, a building owner may paint over a mural under two conditions. First, prior to beginning the work the artist may provide the owner with a written waiver of consent acknowledging that the mural may be destroyed if the building is damaged or altered. Second, without such a waiver, the owner must make a diligent, good faith effort to give the artist written 90-day notice prior to destroying the art.
VARA’s Threat to Intellectual Property
The promotion of creativity and innovation is vital to societal progress. It is so important that the framers of the Constitution explicitly granted Congress the enumerated power “to promote the progress of science and useful arts” in Article 1 § 8. Wyland v. FIFA raises several areas of tension between VARA, property owner’s interests, and art.
First, there is the debate about what constitutes an advertisement versus art. Robert Wyland’s mural, Ocean Life, has been a familiar sight for Dallas’s residents since 1999. This mural was the 82nd installment of the artist’s international 100-mural “Whaling Wall” series. It brought a slice of marine life to a landlocked city, serving as a powerful reminder of the importance of ocean conservation. Following its removal in May of 2026, many residents have expressed their disappointment in its removal. The public’s opposition to the mural suggests that Wyland’s mural was recognizable enough to be protected by VARA. In Wyland, the defendants may argue that Wyland’s mural is an advertisement that promotes his “Whaling Wall” series to secure funding for more projects. If the defendants’ argument is successful, it could place too much weight on the subjectivity of inference in VARA claims. Property owners could claim that any public art installation is an advertisement seeking to promote the artist so they could secure funding for more jobs. As a result, owners could destroy public art installations at-will.
The second threat VARA poses to Intellectual Property is that VARA’s limited recovery may incentivize corporations to forgo legal compliance. Since VARA caps damages at $150,000, property owners or corporations may calculate that the marketing or economic value of the building’s location outweighs the cost of a legal settlement. Public art installments don’t typically provide property owners with some form of revenue. Replacing art that does not generate a profit with an advertisement that comes with a paycheck or converting a shop into apartments would be far more lucrative. Additionally, it takes far less time to paint a wall or tear something down than to get an injunction. The quicker the corporation acts, the faster they could make a profit. With VARA, they would need to wait up to 90 days, contingent upon the artist’s conduct, which could be 90 days of lost profit. This means that it can be much cheaper for property owners to settle later in court rather than follow VARA’s procedural framework. Since corporations typically have significantly more resources than artists, artists face a structural deficit in which they have little legal recourse to adequately remedy their creative and economic losses. This disparity creates a serious risk to society’s promotion of creativity because artists will not be incentivized to invest time and money into projects that can so easily be destroyed.
The third threat is that VARA places limits on property owners’ rights. Owners have the right of control to use and manage their property as they see fit. VARA limits that by setting conditions and a time limit in which the owner cannot remove the art they no longer want on their property. Furthermore, owners may fear the installation could prevent future opportunities like building sales or rental opportunities. These concerns can decrease owners’ willingness to permit artists from installing public artwork, let alone funding it. There can’t be public art installations if property owners don’t want the art. This means society and culture wouldn’t benefit from these artists’ creativity which directly contradicts the purpose of intellectual property laws.
Lastly, there is the fallacy of due diligence when it comes to adequate notifications and party responsibility under VARA. Here, even if the court determines there was adequate notification, the mural was still painted over less than 90 days after the alleged notification that Wyland did not reply to. This means that whether or not the defendants provided actual notice, at least one of them breached VARA’s waiting period. Even so, this case highlights complexities in the execution of notice. Large corporations, like FIFA, often use subsidiary companies or affiliates when brokering contracts. When several different parties are involved, there can be breakdowns in communication along the way. That is the case here. The defendants agree that one of them notified Wyland, but who was responsible for doing so? Is it enough for the artist to get actual notice, regardless of who it is coming from? What can parties do to prevent these communication breakdowns?
Property Owners
Slate Asset Management, who owns and operates the building in question, has publicly stated that they were approached by both the North Texas Fifa World Cup organizing committee and Downtown Dallas Inc. to donate the wall, that once held the famous whaling mural, to be replaced by a new mural, with the purpose of celebrating and promoting the World Cup coming to Dallas. They claim that they were told by these organizations that Mr. Wyland had been notified of the destruction of his mural. It seems that in making these claims, Slate Asset Management aims to wash their hands of their legal responsibility to inform Mr. Wyland, in writing and within 90 days, of the destruction of his mural or provide him with a waiver of consent by placing the blame solely in the hands of the organizations they claim informed them of Mr. Wyland’s knowledge of the proceedings.
However, the majority of the responsibility to inform the artist of the destruction of their work should rest in the hands of the building owners. Under VARA, it is the responsibility of the owners to give the artist 90-day notice of destruction or acquire a written consent from the artist to destroy their art. While this particular point is in dispute in this case, if the responsibility to inform the artist lies entirely or mostly with the owner, a reliable pathway to ensure that the artist is properly notified of the destruction of their art can be formed. In a similar case, Cohen vs G&M Realty, Gerald Wolkoff allowed graffiti artists to use his warehouse buildings as their canvas. These graffiti art pieces, totaling fourty-five pieces, gained recognition over time, sufficiently constituting “recognized stature” under VARA. When Wolkoff later planned to tear down his warehouse to develop the land into apartment buildings, he proceeded to paint over all of the acclaimed graffiti art pieces, without providing sufficient 90-day notice to the twenty-one artists who created them. The court held that Wolkoff did, in fact, violate VARA by not providing the required notice to the artists. In Mr. Wyland's case, if the responsibility belongs solely or mostly to the building owner, then not only can there be a reliable source to “blame”, but in the interest of the building owners, steps can be taken to mitigate the risks of being similarly sued under VARA.
When building owners go through greater lengths to reach the artist and ensure that they inform them in a good faith manner, they also serve the best interest of themselves. If Slate Asset Management could have just shown that they made a good faith effort to reach Mr. Wyland, even if he did not receive the notice and could not be reached, then this is a more cost effective route for them as well, as they could have avoided being put in the situation that they currently are in, being sued for $25 million. So, while on the surface, building owners may not want to accept the full responsibility of providing notice to artists who have art on their buildings when their work is going to be destroyed, taking on this responsibility may actually be a step in the right direction towards protecting their own interests against being sued by the artists.
FIFA: The Coverup
The artist claims in the lawsuit that there was no notice or communication of any kind, but who is responsible for that notice? VARA addresses what happens when a building owner wants to paint over the mural, but does not specifically discuss what happens when an outside organization is looking to take it down. While the business owner does bear some responsibility to the artist, the organization looking to paint over the mural should carry the ultimate burden since they are the ones looking to destroy the mural.
FIFA’s strategy is to claim that the Whaling Wall 82 mural is an advertisement and therefore does not fall under VARA. VARA allows you to paint over a mural if you have received consent from the artist through a written waiver. If the organizing committee had attempted to do this, it would open communication with the artist to potentially work together and problem solve, such as temporary installations or unused building spaces. If the committee is able to get the waiver signed or find another solution, then there is no violation of VARA. This communication from the organizing committee can also be important in the notification process, which requires a good faith effort to give the artist a 90-day notice.
In this instance, both the Wyland lawsuit and the community backlash in Dallas came before completion of the FIFA’s planned mural, causing FIFA organizers to abandon the mural and leave the project unfinished. This likely led to wasted money and resources and demonstrates consequences beyond legal liability. In the future, businesses and organizations may consider the various routes and the cost and time associated with them, but also need to consider what can stop them from completing the project. If the project is not completed, it can reflect negatively on the patron business as it did with FIFA. To avoid this negative response, the first step that a business should take is to make an effort to communicate with the artist to protect themselves from a lawsuit and violating VARA, as well as to mitigate the community backlash.
Conclusion
In the end, the whaling wall was left destroyed, as a blank blue wall, with no replacement mural painted over it. The original mural, once a staple in Dallas, was painted blue, to make room for the proposed Fifa World Cup mural, without the consent of Mr. Wyland. The lawsuit brought by Mr. Wyland, as well as the petition signed by nearly 3,000 people, demonstrates the importance of the whaling wall to the culture of Dallas and paints a bigger picture about what will not be tolerated when businesses disregard significant art pieces. This lawsuit illustrates why businesses, such as Fifa and Slate Asset Management, must be held accountable for their actions regarding pieces like the whaling wall. If influential pieces of art can be so easily destroyed without any accountability, who is to say that any other significant art pieces are safe from the same fate that Mr. Wyland and his whaling wall met?
*The views expressed in this article do not represent the views of Santa Clara University.
Comments