Can Federal Law Save This Threatened Black Lives Matter Mural?

Every time graffiti artist Ashley Montague rides his Suzuki motorcycle down Southeast Stark Street, he stops next to Bonfire Lounge.

He wants to make sure his mural of slain teenager Michael Brown—or what's left of it, anyway—is still on the outside wall.

It's been two years since Brown, an unarmed black teenager, was fatally shot by a white police officer in Ferguson, Mo., a killing that sparked waves of riots and a political movement called Black Lives Matter.

Two days after the Ferguson shooting, the 42-year-old Montague, a rebellious graffiti artist now mainstream enough that he speaks at Portland grade schools, painted Brown's portrait 15 feet tall and 30 feet wide.

The wall Montague chose, on the side of Bonfire Lounge, has long been a canvas for muralists, one of the few Portland walls that has remained a piece of public art since the early '90s. That's when the building's owner gave permission to another artist to paint palm trees on the site. The rights to the wall changed hands for nearly 20 years, until they landed with Montague.

Montague's mural depicted Brown with a bright orange halo, a heart floating outside his chest, and a dove taking flight from his outstretched hands. Behind Brown, two police in riot gear pointed guns at the back of his head.

This memorial—perhaps the most prominent symbol of the Black Lives Matter movement in Portland—seems even more potent today. The recent killings of two black men by police in Baton Rouge, La., and St. Paul, Minn., and the slaying of police officers in Dallas and Baton Rouge, have rekindled a national debate about the frayed relationship between African-Americans and law enforcement.

But the Michael Brown mural has been controversial since the day it was painted.

"It's unnerving—a representation of the beauty and violence in life mixed together," says Royal Harris, a Portland black activist. "In really white Portland, it's jarring to be faced with that reality."

Almost immediately after Montague painted the mural in August 2014, it became fodder for debate. The morning after he completed it, the building owner, George Kassapakis, demanded Montague paint over the riot cops.

Then, this May, vandals tagged the mural with the words "cops killed me" in orange spray paint, rendering the mural even more provocative. Portland's anti-graffiti laws mandate that tags be painted over, and in covering the graffiti, the city's contracted painter rolled over parts of the dove and halo, too.

In February, Bonfire Lounge sold to Travis Miranda, who also owns Baby Doll Pizza next door. While Miranda doesn't own the building, he wants the entire mural gone. His first idea was to replace it with ads for pizza slices and a gym.

In May, Montague dropped in on Miranda at Bonfire, offering to paint over the mural with a new piece. Instead, Montague says, Miranda told him he planned to paint over the mural because "the neighborhood fucking hated it." So the artist took to Facebook. Montague's post about his dispute got more than 500 shares and 100 comments, many threatening to boycott all of Miranda's businesses.

Today, the memorial to Brown remains half painted over and obscured by dumpsters. It is easily missed by crowds passing by on their way to dance nights at the Goodfoot Pub & Lounge.

It is also protected by a little-known federal law.

The Michael Brown portrait is one of at least two dozen murals across Portland that are being threatened by hostile landlords or new development.

But these murals enjoy a federal legal protection, the Visual Artists Rights Act of 1990, that prohibits building owners from covering them up.

It's a law that's been in place for a quarter-century, yet most developers, business owners, and even artists don't know about it. Even the Portland city attorney, who oversees a local program to preserve murals, knows little about the law known as VARA.

Portland City Attorney Tracy Reeve says the city carefully oversees the legal rights of public art funded by the city, but isn't monitoring the legal safeguarding of other murals. "That's between the owner of the wall and the artist," she says.

This federal protection could be the salvation for dozens of threatened murals.

"Building owners assume they own their walls, but when their walls contain murals, there are rights in those murals that belong to artists," says Lydia Loren, a copyright lawyer and Lewis & Clark law professor. "VARA runs counter to our intuition about property ownership."

In a city highly sensitive to both social justice and the slightest change to the streetscape, VARA is likely to be at the center of fresh battles over artists' rights.

The best example of the confusion about who controls a wall might be Montague's mural, which takes the controversy of the Black Lives Matter movement and makes it visceral.

"Sometimes you want to shock people," Montague says. "Art is a form of communication. If it's going to say something, why not have it say something with meaning?"

Montague describes himself as a "skinny white kid." Yet the police shooting of Brown disturbed him so much, he felt he had to paint.

"Every person has their limit," he says. "I thought, 'This keeps happening. Now I need to say something.'"

Montague is nobody's idea of a militant activist. Thin as a fence post, he wears tortoiseshell prescription sunglasses and a tweed hat, regardless of the weather. Tattoos of phoenix feathers peek out from under his sleeves. He spends weekdays with his 3- and 11-year-old sons, weekends painting for wineries or EDM music labels, and leads grade-school classes on tours of Portland murals, encouraging kids to see art on the street.

Painting in Portland since 1996, Montague makes his living through commissions for album covers and businesses like Astoria's Buoy Beer, and DJing at Northeast Portland's Swift Lounge. He describes himself as the middle generation of street painters, younger than the old guard—like Vanport flood survivor Isaka Shamsud-Din, who painted African-American figures on the Justice Center in 1983—but established enough to oversee about 15 ever-changing walls scattered across the city.

Related: A graffiti landmark is slated to become a 65,000-square-foot office space.

"Twenty-plus years ago, all the murals were done by black folks up in North Portland, and all highly political," Montague says. Now, about 20 active street artists make up the mural scene specifically, competing for a limited number of local public-art grants.

Young artists come to Montague for advice on how to get their paint on a wall.

Related: Black family forced out of Alberta neighborhood.

"I go to places I know and just talk to people," he says. "Like Angel Food & Fun. It's a few doors down from my house, and I would just go in for burritos. Then we started talking. You have to slowly build a relationship with them. Some people are very trusting. Some, it's taken five or seven years."

That conversation turned into an Aztec-inspired mural with a Mayan pyramid, shirtless warrior and setting sun. Montague turned another wall, on the side of Northeast Prescott Street's Motivisi Coffee, into an 8-foot portrait of Prince after the musician's death in April.

Related: Motivasi Coffee gets Portland's first Prince mural.

Sometimes Montague inherits a "grandfathered" wall in Portland—a wall designated for art, and passed down from artist to artist, since before the city passed a strict signage code in 1998 that bans large billboards. The city calls them "nonconforming use walls," meaning they do not need to conform to current signage laws.

That was the case at Bonfire Lounge. In the 1990s, Malaysian-American artist Ping Khaw painted a promenade lined with palm trees on the wall. When Khaw's mural faded, the Regional Arts and Culture Council sponsored her and a group of local volunteers to repaint the wall with a world map.

Bonfire's then-owner, Kassapakis, who still owns the building, signed an easement officially allowing Khaw to repaint the wall in 2005.

To give Montague the wall in 2014, Khaw removed the mural from RACC's public art registry and handed it off to Montague through a legal process called deaccessioning, through which the wall's VARA rights were retained.

Most of Montague's public works lean heavily toward social-justice issues.

He constantly scours the city for walls that get "bombed" with unplanned graffiti, offering to paint over the tagging with meaningful murals. Sometimes these walls are grandfathered or permitted by the city. Sometimes Montague and the building owner just talk it out.

"The concept is what takes the longest," he says. "Then, it's a hundred or so dollars of paint and around 16 hours painting in the sun."

Once they're painted, Montague casually keeps tabs on his walls and gets updates from friends or through social media. And if he sees something change? "I've always been like, 'Hey, can we just talk about it?'"

But that strategy isn't always effective.

Artist advocates like Joanne Oleksiak, a founder of the now-defunct Portland Mural Defense group, can rattle off a long list of murals in the city that have disappeared this decade.

"There are way too many examples of murals that have been painted over," Oleksiak says. "Just like with a house that's on the historic register, we've been verbally assured it's safe—and then, bam, wrecking ball at 6 am."

Advocates tracking outdoor art say dozens of murals are currently under threat—most of them not because the building owner disagrees with the message, but because the building itself could be torn down or covered up by new development.

The future of a psychedelic mural by local artist Klutch is in limbo because the United Refrigeration building at Southeast 10th Avenue and Stark Street is for lease. Located on the former Farm Cafe on East Burnside Street, Cars Into Plowshares may come down with the building, which was recently bought by local development firm Fowler Andrews. On North Albina Avenue, a new building just went up next to Souther Salazar and Brendan Monroe's mural of trees and smiling critters, blocking it almost completely from view. (This is a common problem for muralists, who often find space on walls adjacent to empty lots.)

One mural, at the former location of arts and crafts store Scrap on North Williams Avenue, is partially gone. First painted in 2005 by North Portland artist Bruce Orr, one-quarter of the mural was removed to make room for a glass garage door when Lompoc's Sidebar moved into the spot in 2014.

"The bar never notified the city, asked anybody, or thought to ask the artist," Oleksiak says. "They cut the hole in the wall and ruined the mural."

Orr's mural was part of a collection of public art overseen by the Regional Arts and Culture Council, a taxpayer-funded agency that requires artists to waive their legal rights.

Related: So Sue Us: Why the Portlandia Statue Failed to Become an Icon

But artists who haven't signed a release? Federal law says they keep the rights to their work for life.

"If they have not waived their rights under VARA, in writing, then the artist has rights," says Portland copyright lawyer Kohel Haver.

"Artists can seek to have an impending [change] halted by the court through disjunctive order," says Loren, the Lewis & Clark professor. "If it's occurred already, they can get money or damages for the destruction."

For most working artists, legal fees are a huge deterrent.

Related: Portland graffiti artists are switching careers as their art gets covered up.

"Hiring a lawyer can be expensive, and filing a federal lawsuit is expensive," Loren says. "Then there's the actual case. But the real issue is how neither party understands the nuances of VARA. The copyright act has a fee-shifting provision. If you win, you can get attorney fees paid by the other side. It's a double-edged sword, though, and for artists, that's quite a deterrent."

One block north of Orr's Williams Avenue mural is another, the handiwork of Portland legend Tom Cramer. And while the mural itself is inoffensive, it sits on a warehouse that was bought this year by architect Daniel Kaven. While Kaven would not return WW's phone calls, Cramer says it is his expectation that the building will be coming down.

Related: Tom Cramer survived surgery and a broken heart to create these deep cuts.

And he says he plans to sue, which could have national repercussions for visual artists who paint on the streets of rapidly changing cities.

There are few cases where VARA has been tested in court, leaving artists, business owners and lawyers with little precedent on which to base claims.

"Many of us are hoping for good case law in Portland because it would be valuable for the rest of the country," says Oleksiak, who describes herself as an anti-war activist and artist.

Loren, who helps run Oregon Volunteer Lawyers for the Arts, an organization that offers free legal clinics for artists, encourages them to know their rights but says she rarely sees cases go to court.

"I don't know of any VARA cases that have resulted in published decisions here in Portland," she says. "I've heard through the grapevine of allegations based on VARA, but parties will settle out of court."

Cramer and his lawyer Kohel Haver could change that, giving artists and building owners across the nation a precedent to refer to.

"We are poised and ready to go to court if someone touches that wall without talking to me or Tom," Haver says. "We will make national news, but we need imminent threat."

So far, the new owner hasn't filed a demolition permit for the site.

When Travis Miranda took over Bonfire Lounge in February, he barely noticed the Michael Brown mural.

"The mural outside the building was not even on my to-do list," he told WW after the graffiti appeared in May. "I was thinking of ways to promote the businesses, and no, I don't really like the mural. Art is subjective, right?"

Related: Bonfire's owner wanted to paint over Michael Brown with advertising.

But when the mural was tagged with "cops killed me" graffiti, Miranda's mild dislike turned into fear.

"I don't want that portrayal of violence when there are a lot of kids in this neighborhood," he said in May. "We will probably leave it alone for a while for fear of anyone coming back."

Two months after the May uproar that jeopardized Miranda's business and reputation, with calls for boycotting Bonfire and allegations of racism, Miranda realizes he can't simply paint over a mural he dislikes.

"After looking into it further since this all happened, I see the laws are very complex," he says. "It's one more thing to learn. As business owners, we're always learning—to be plumbers, electricians, lawyers. It's confusing for everybody."

Miranda is working with Kassapakis, the building's owner, to find new art. Kassapakis, who did not return WW's requests for comment, will let Miranda decide the fate of the wall and simply sign off if he approves, Miranda says.

"We have two different ideas floating around," he adds, declining to discuss them. "Then we need to check with the building owner. He is the only one who can make the final call."

Miranda says he intends to work more closely with artists. "We'll talk to Ashley before going forward," he says. "From an artist's standpoint, it would make sense to have him hand it over symbolically."

Related: A Trail Blazer exec's car got tagged outside the Art Museum.

Oleksiak, who has carefully watched the wall's progression since Khaw first painted palm trees on it, hopes Miranda will offer the wall to a local artist of color, possibly Toma Villa, a Native American muralist.

Montague says he wants the wall to keep rotating between artists, and would support Villa as his successor.

"The goal," he says, "was to have it be a changing wall for social-justice issues that are current. We're really just one, big fucked-up nation right now."

Montague is already planning his next mural, which will be on Northwest Portland's Cinema 21. Theater owner Tom Ranieri says the mural will be a memorial to James Chasse Jr.—an unarmed, mentally ill man beaten to death by Portland police officers in 2006.

Update: After WW's press deadlines, Montague left the Cinema 21 project. The theater has not decided whether the James Chasse Jr. memorial mural will go forward with a different artist. Montague is now planning a mural addressing gun violence with the "hear no evil, see no evil" monkeys, and is searching for a wall to paint on.

Willamette Week