A judge in U.S. District Court in South Carolina has awarded local artist Todd Atkinson $158,400 in a copyright infringement case against artist Chan Shepherd and the owner of the building on which Atkinson’s mural was originally painted.
Atkinson painted the mural, of a train and a water tank, with the words “Water Tank” in a red banner, on the side of a building in Clover, S.C., in the summer of 1982, according to court documents. He filed a copyright certificate on Dec. 11, 2023, and was granted copyright on Mar. 7, 2024. For many years, the building, located at 111 N. Main Street, was home to a bar called the Water Tank; according to Google, it is temporarily closed.
In a letter dated Oct. 12, 2023, addressed to Justin L. McFalls (and McFalls’s business, Queen City Plumbing), Atkinson’s lawyer, Alex Long, accuses McFalls of hiring another artist, Chan Shepherd, to paint a similar version of the Water Tank mural over the original on the building that McFalls recently purchased. “My understanding is that Mr. Atkinson’s original painting bore his name as author and that Mr. Shepherd painted over Mr. Atkinson’s name and applied his own name in place thereof,” Long writes.
Long goes on to explain that McFalls is in violation of Atkinson’s right of attribution, according to the Visual Artists Rights Act (VARA), a federal law passed in 1990. The act applies to works of public art (including murals and statues), and protects the artist’s copyright throughout his or her lifetime.
“A lot of artists are aware of copyright generally, and that they own the copyright from the moment they create it, but I don’t think they’re aware that they have these additional rights of attribution and against mutilation,” Long told the Post and Courier. False attribution was the key issue at play.
Court records include a social media exchange between McFalls and someone named Leslie Falls Atkinson, presumably a relative of Todd Atkinson’s, in which McFalls dismisses the accusation of copyright infringement. “[I]f Todd is so concerned about what was painted on the building he should have bought the building. Additionally if he was so concerned about his artwork he should have offered to touch it up rather than let it be the crumbled mess it was. This is not a like for like copy of the original image Todd painted. We did do our research and looked back on old photos for the past 40 years, this image is different and has [n]o infringement of his work nor did he have a copyright in place. Get out of here with that mess.”
The court awarded Atkinson $150,000 in statutory damages (the maximum amount allowed under VARA), and $8,400 in actual damages. According to the Post and Courier, Atkinson and Reardon McFalls Enterprises, LLC (the developer that purchased the building) settled out of court, and Shepherd, the co-defendent who painted over the original mural and signed his own name to it, did not respond to the lawsuit, nor has he filed legal counsel.
