In the rapidly changing world of Intellectual Property Law, street art protection is less commonly discussed than that of other innovative creations. Street art is somewhat ambiguous in its meaning. It is common to associate street art with the graffiti spray-painted tags on a building or subway. However, actual street art is something created with more depth. Legally, the distinction between permanent graffiti and art is permission. Street art becomes vandalism when that permission to publicly paint is not granted.[1] Because of the complexity of public art, the amount of protection warranted to street art is unclear. Graffiti law is not yet a legal practice; however, graffiti-related disputes have been stirring across the country.[2]
In a case close to home, 5Pointz graffiti curators have been wrestling with building owners over their famous murals being torn down without notice in Long Island City, New York.[3] 5Pointz, the outdoor art exhibition once praised as an international “graffiti mecca,” is undergoing construction as it transforms into two residential high-rises with luxury apartments.[4] Strikingly, the apartments will keep the 5Pointz name. The newly constructed buildings will showcase street art-style decorations in memory of the destroyed exhibit, much to the dismay of original 5Pointz artists. The building may even display replicas of 5Pointz if the artists grant permission. That may be unlikely, though, considering their adversarial stance against the building owners.
The legacy of 5Pointz began with curator Jonathan Cohen in the early 1990s.[5] Nearly three decades ago, the site was merely made up of unused artist studios. So, Cohen asked the building’s owners, Jerry and David Wilkoff, for permission to paint on the walls of the buildings.[6] After agreeing to the artist’s use, Cohen went to work and, over time, local and international artists joined him, turning the buildings into the colorful outdoor art exhibit it came to be known as over time.[7]
The building owners were issued a permit on August 21, 2013 by the City Planning Commission to convert the 5Pointz buildings into high rise apartments. On October 10, 2013, Cohen and other aerosol artists sued the owners of the buildings that housed 5Pointz to prevent their works’ destruction, asserting VARA (Visual Artists Rights Act) and common law tort claims in the Eastern District Court of New York. In the case of Cohen, et al. v. G&M Realty, L.P., the court denied the artists’ request for injunctive relief.[8] Despite the suit, the 5Pointz artwork were quickly whitewashed in one night, erasing all artwork to allegedly prevent the property from being able to claim landmark status. The artists accused the owners of deliberately whitewashing the art so rapidly in an attempt to sabotage their plan to get the building landmarked because they had already prepared over 20,000 landmark forms for submission to the Landmarks Commission that were collected during a rally several days before the destruction. The stigma behind graffiti being an act of vandalism is blurred when building owners consent to having street art on their property, and then forcefully remove it without giving the artists an opportunity to preserve their work.
Twenty-three artists had accused Jerry Wilkoff of removing the murals without giving the artists a fair opportunity to remove and preserve their work, or even the minimum notice required by law.[9] In March 31, 2017, Senior District Judge Frederic Block ruled against the real estate developers, who made a motion to dismiss the artists’ third and final complaint. Judge Bloc stated that: “For VARA, the plaintiffs would have no right to prevent 5Pointz’s destruction by its rightful and legal owner; hence, the plaintiffs’ “moral rights” to prevent another’s disposition of his property arise purely under VARA. Because the plaintiffs’ conversion and property damage claims wholly depend on the viability of their VARA claim, the Court finds them to be fully preempted.”[10] This significant legal victory for the artists is meaningful for the entire art community because the judge is allowing the case to go in front of a jury who may be more sympathetic to the wronged artists than to the real estate owners and developers.[11]
Cohen and his fellow artists asserted that their street art is protected under VARA, a federal act that grants visual artists limited rights over visual works of art they created but do not own, and thus they are entitled to monetary damages for the destruction of their visual works of art.[12] VARA offers limited protections to only visual works of art. A “work of visual art” is:
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author.[13]
Evidently, the 5Pointz street art exhibition can be classified as a visual work of art because the murals were spray painted at the site and signed by the artists, and Judge Frederic Block agreed. The developers unsuccessfully argued that the rights warranted by VARA were “narrow and inapplicable given that, while the artists are well-known, the works are not.”
The judge ruled that the evidence provided by both developers and artists on VARA claims were sufficient to allow this case before a jury. VARA states:
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work…
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights.—
Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are co-owners of the rights conferred by subsection (a) in that work.
(c) Exceptions.—
(1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).
(d) Duration of Rights.—
(1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
(e) Transfer and Waiver.—
(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author…[14]
Interestingly, real estate and copyright law seem to intersect where VARA applies, and so real estate owners, like those of the 5Pointz site, need to be aware of its protections. Title 17 of the United States Code, Section 106A(a)(1)(B)(3)(A) provides that the author of a visual art has the right to prevent intentional mutilation of a work, and any such mutilation is a violation of that right. Undoubtedly, the developers have violated the artists’ VARA-granted right. None of the statutory exceptions apply to the developers. The works were not naturally distorted over time or modified for improvement. Furthermore, 5Pointz comprised of original visual works based on each artist’s own perception; they were not reproductions or depictions of other works, so the third exception does not apply either. VARA grants visual artists these rights for the duration of the artist’s life, unless that right has been waived in a written instrument and signed by the artist, and there is no evidence of such waiver by the artists here.
While some perceived Judge Block’s ruling against the developers as an “unexpected turn” for the graffiti artists, it’s almost clear-cut that VARA is written in the artists’ favor. Despite the undefined realm of graffiti law, VARA is not so ambiguous as to the protections it warrants; nonetheless, it is narrowly construed. With the support of articles on 5Pointz, corporate and worldwide recognition, and “aerosol art” experts’ testimonies, it seems quite feasible that a jury will sympathize with the 5Pointz artists who, with the permission of the owners, worked on the demolished buildings. In the meantime, the art world awaits and anticipates the trial that turn out to be a landmark case for street artists in need of protection for their recognized works.
[1] Nicole Martinez, Street Art or Vandalism? Art Law Journal (2017).
[2] Marie-Andree Weiss, “Spray” the Word: Graffiti Law is a New Legal Niche, The 1709 Blog (2016), http://the1709blog.blogspot.com/2016/11/spray-word-graffiti-law-is-new-legal.html (last visited Aug. 4, 2017).
[3] Claire Voon, A Glimpse Inside the Street Art–Themed 5Pointz Condos, Hyperallergic (2017), https://hyperallergic.com/386244/a-glimpse-inside-the-street-art-themed-5pointz-condos (last visited Aug. 4, 2017).
[4] Corey Kilgannon, 5Pointz Graffiti Artists Whose Works Were Erased Will Get Day in Court, The New York Times (2017), https://www.nytimes.com/2017/04/09/nyregion/5pointz-graffiti-artists-whose-works-were-erased-will-get-day-in-court.html (last visited Aug. 4, 2017).
[5] Bruce Wallace, Remembering 5Pointz: A Five-Story Building That Told Plenty More, NPR (2013), http://www.npr.org/2013/11/21/246549375/remembering-5pointz-a-five-story-building-that-told-plenty-more (last visited Aug. 4, 2017).
[6] Jessica Meiselman, 5 Pointz Graffiti Artists Score Major Win in Suit against Developers, Artsy (2017), https://www.artsy.net/article/artsy-editorial-5-pointz-graffiti-artists-score-major-win-suit-developers (last visited Aug. 4, 2017).
[7] Leonard Greene, Two high-rise towers will pay homage to graffiti mecca 5Pointz, NY Daily News (2017), http://www.nydailynews.com/new-york/high-rise-towers-pay-homage-graffiti-mecca-5pointz-article-1.3207741 (last visited Aug. 4, 2017).
[8] See Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013).
[9] Laurel Babcock & Bob Fredericks, Graffiti mecca 5 Pointz erased overnight, New York Post (2013), http://nypost.com/2013/11/19/5-pointz-graffiti-erased-in-overnight-paint-job/ (last visited Aug. 4, 2017).
[10] Cohen v. G&M REALTY LP, Case No. 13-CV-05612 (FB) (RLM) (E.D.N.Y. Mar. 31, 2017), https://scholar.google.com/scholar_case?case=13462150384806350539&q=COHEN+V.+G%26M+REALTY+L.P.&hl=en&as_sdt=3,33&as_vis=1 (last visited Aug 24, 2017).
[11] Corey Kilgannon, 5Pointz Graffiti Artists Whose Works Were Erased Will Get Day in Court, The New York Times (2017), https://www.nytimes.com/2017/04/09/nyregion/5pointz-graffiti-artists-whose-works-were-erased-will-get-day-in-court.html (last visited Aug. 4, 2017).
[12] Cohen v. G&M REALTY LP, Case No. 13-CV-05612 (FB) (RLM) (E.D.N.Y. Mar. 31, 2017), https://scholar.google.com/scholar_case?case=13462150384806350539&q=COHEN+V.+G%26M+REALTY+L.P.&hl=en&as_sdt=3,33&as_vis=1 (last visited Aug. 24, 2017).
[13] See 17 U.S.C. § 101 (1994).
[14] Id.
Anonymous
In the case of the 5 pointz Graffiti and VARA, it is important to note that this was an issue that could have been very easily avoided had the parties been in communication. Those against the artists and for the developers would note that it is their property and that they are allowed to do anything with it. To have to preserve the work by maintaining the shoddy buildings would be an unreasonable hold on their rights. However, to suddenly and without warning remove the graffiti is likewise an unreasonable breach of the artist’s rights. Had they simply given the artists a chance to preserve their works before removing them, this entire issue could have been avoided.
Therein lies the central concept of the legal system; the idea that people simply cannot work problems with each other and need to get the government involved. Of course in hindsight the issue seems simple. It is very likely that the developer simply did not anticipate that the artists would want to preserve their work. But to remove the graffiti in bad faith when a case was being brought was a very stupid decision. Now everyone has to pay more legal costs, from hiring lawyers, expert witnesses, and filing documents in order to simply make an equitable result.
Granted, in the big scheme of things for a real-estate developer the amount they will have to pay will be very small compared to the large amount of money they will make from having real-estate in New York. It will be hard pressed for real-estate developers to take these sorts of considerations very seriously, especially since in this case works out in the developer’s favor even if they must pay some extra. Think about it, having to pay the artists for the destroyed work is preferable to having landmark status confirmed and not being able to remove the building at all. If the court wishes to fully enforce the act, they must also bring forth punitive damages so that the action of violating the law isn’t profitable.
However, it is important to note that punitive damages are only necessary if it was likely that the building would have been granted landmark status. Here, I am not terribly certain. Like I said before, to a layman it is unreasonable for a real estate developer to be not be allowed to renovate his building because there is art on his property that became famous. To allow this would set a worse precedent and few developers would grant the rights for artists to work on their property if they knew it could backfire on them.
Interested
I think it could be argued that the phrase “…inherent nature of the materials…” could be applied to the reasonable assumption that the walls of dilapidated buildings are by their inherent nature a temporary “canvas” and should be reasonably expected to be painted over and/or torn down.
For the record, I love the art, but disagree with the artists on this issue for several reasons, not the least of which is the potential chilling effect on future permission by building owners.
Another anonymous
The rights of VARA do not exist in a vacuum, they exist alongside all other rights. I don’t know if the lawyers for the developer would include common law jurisprudence in their argument, or if the jury would take it upon themselves to consider it. I find it unlikely that it would be considered during the trial.
However, an appeals court would certainly weigh common law jurisprudence against VARA, and I don’t see how VARA could come out on top. The tradition and rules related to real property span centuries and predate the US. Undoubtedly the lawyers for the developer could find Supreme Court rulings that support real property owners in similar cases; I would imagine the artist’s lawyers would have a much harder time citing any similar precedent in their favor.
Max
Being someone who is attracted to unique IP cases, I found this post to be a very interesting read. One thing I found particularly intriguing (aside from the fantastic photographs of the 5Pointz Mecca), was learning about the unique fusion of real estate and copyright law where VARA applies. I never realized how much IP could impact other useful fields of law, and now I’m curious to read up on other areas of law that cross paths with IP.
I could not believe G&M Realty LP would want to destroy the artistic anomaly that was 5Pointz, yet have the audacity to keep its name and showcase street-style décor “in memory” of the destroyed exhibit. I am really curious to see in the quantification of damages that the jury will award these artists when this case happens (assuming the 23 artists will now win with a sympathetic audience due to Judge Block), and how that figure will almost invariably be changed on appeal. These artists may be in for a huge pay-day because Jerry Wilkoff’s actions seemed punitive in nature. He removed these ‘one-of-a-kind’ murals without giving the artists even the slightest morsel of what may amount to a fair opportunity to remove and preserve their work.
As a practice point, it is interesting to see how arguably the most important legal victory for this legal issue was getting this case in front of a jury. Each case has a life of its own, and its strengths and weaknesses. At times, counsel fights like hectic to get a case to trial because of the perceived benefit of getting a case before a jury of their peers whereas, in other cases, virtually everything is done procedurally to slow/stymie/prevent a case from going to trial. It appeared that the heart of this legal matter fell on whether a jury would hear this case. Counsel for the artists made the strategic decision to get this case before a jury and it has seemed to pay off thus far. The importance of knowing thyself and thy audience can never be understated. I hope Cohen, et al. v. G&M Realty L.P. serves as legal precedence for future IP litigation when visual artists are presenting a case for injunctive relief to protect their art. If artists aren’t granted injunctive relief, they risk getting their creations completely whitewashed overnight like the 5Pointz Mecca.
As a New Yorker born and raised with an appreciation for true originality, I couldn’t help but feel proud when reading that 5Pointz comprised completely of original visual works based on each artist’s own perception and not reproductions or depictions of other works. I’d like to think that is because New York City is World Headquarters of original expression, and promotion of the arts and sciences. NYC is the nerve center of artistic originality because true New Yorkers don’t have a fake bone in their body. I was taken aback to see something so beautiful torn down, and I don’t think something like this would ever happen in Camden (England).
Andrew K
What are the consequences moving forward for real estate developers who violate VARA? Does the artist receive compensation for someone destroying their mural without consent? Does the one who destroys the mural spend time doing community service? Where is the part where the developers are held accountable?
sewellnylaw
On or about February 12, 2018, Federal Judge Frederic Block in Brooklyn awarded $6.7 million to graffiti artists who sued after their work was destroyed on buildings torn down to make room for luxury condos. The ruling followed a three-week trial in November 2017.
The judge said he would not have assessed so much in damages if the owner had awaited his permits and demolished the art 10 months later than he did. “If not for Wolkoff’s insolence, these damages would not have been assessed,” Block wrote. “If he did not destroy 5 Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.” The judge noted that the artists, in contrast with Wolkoff, “conducted themselves with dignity.”
Clearly, one of the lessons here is buyer/developer beware. Having quality and experienced counsel from the beginning foregoes many issues in the future. The developer would have likely saved millions of dollars in damages if the judge’s reasoning were to have been provided by the developer’s counsel prior to demolition. Ultimately, while it may cost a client more upfront to retain highly qualified counsel, the resulting savings are invaluable; hopefully, a lesson well-learned by all.
Risa
Coasean Bargaining:
The developer and artists in this property transaction could have easily optimized their intellectual and real property interests had they been involved in coasean bargaining at the outset of negotiations for their respective property rights. The Coase Theorem, coined by the famous economist Robert Coase, dictates that in the absence of transaction costs, clearly-assigned property entitlements will flow to their highest valued user, regardless of to whom they are initially assigned. This theorem is designed to reveal the importance of transaction costs in the design of legal institutions. This case, however, illuminates the realities of Coase Theorem analysis because transaction costs are, of course, usually greater than zero.
The existence of a bilateral monopoly can be a significant cause in the creation of high transaction costs. These bilateral monopoly situations prove difficult for peaceful coasean negotiations because the parties have nowhere else to turn to engage in the transaction. A common occurrence of this is where parties may get off on the wrong foot leading to resentments and bad blood making it difficult to convert the relationship into one of cooperation.
This case is emblematic of difficulties present in coasean bargaining within the framework of bilateral monopolies. Wolkoff allowed these walls to be used for decades because the building had relatively negligible commercial potential. At this point, the property entitlement flowed to the highest valued user, the artists, because the building was an abandoned art studio that profited the artists more than the developer. As the economic landscape rapidly changed, however, the value of the land the buildings stood on increased and could best be served by a high-rise building. However, by the time the developer wanted to discontinue the relationship as the property values increased, the artists already had a legally cognizable intellectual property interest. Though the relationship between Wolkoff and Cohen began cooperative, it ended in bad blood. Wolkoff effectively destroyed the paintings by whitewashing it off out of revenge and legal counsel failed to give their due diligence in advising Wolkoff against it.
Moreover, the Coase Theorem assumes that individuals are rational maximizers: it suggests that for the Coase Theorem to function seamlessly, one must assume that people are natural cooperators rather than ruthless exploiters. It is clear from this case, however, that all people do not act rationally in pursuit of their interests all the time. Wolkoff acted irrationally in pursuit of his real property interests by providing the artists no notice when whitewashing their paintings off the buildings. The lesson here is all too clear but too often ignored: it is crucial to anticipate potential bilateral monopoly problems that will preempt any coasean negotiations. This would have saved both Wolkoff and the artists hundreds of thousands of dollars in litigation and other transaction costs down the line, and, most importantly, the 6.75 million dollars Wolkoff will now have to pay in damages.
The artists were awarded 6.75 million dollars in damages because they were awarded $150,000 in damages for the each of the 45 pieces of artwork. A statutory award may be given where actual damages are difficult to prove. “When determining the amount of statutory damages to award for copyright infringement, courts consider: (1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.” See Bryant v. Media Right Prods., 603 F.3d 135, 144 (2d Cir. 2010). Here, the Court found that all the evidence based on these statutory factors weighed in favor of the artists. See Cohen v. G & M Realty L. P., 988 F.Supp.2d 212, 225 (E.D.N.Y. 2013).
To facilitate coasean bargaining at this stage from an ex-post perspective, it is possible that Wolkoff and the artists can negotiate a deal on appeal for the artists to have a portion of the new structure for their artwork in order to avoid the 6.7 million dollars. However, the worth of the prior 5pointz artwork may be diminished on a new structure if recreated because it may not be considered original visual art anymore, thereby rendering potential coasean bargaining useless at this stage. Even more so, it is unlikely to occur due to the psychological impediments hindering Wolkoff and Cohen from engaging in peaceful coasean bargaining due to the bad blood between the parties. Still, it is an option to explore, especially if Wolkoff would like to explore cheap alternatives to paying 6.7 million dollars in damages.
Cultural Implications:
The judge’s decision to send this to a jury had significant cultural implications in the world of art. The jury returned a verdict awarding the artists 6.7 million dollars in damages. The jurors’ verdict revealed on a more macro level of how the wider New York culture perceives and celebrates street art. Back in the 1980s and 1990s, graffiti was not recognized as a form of art; rather, it suggested lawlessness. With the rise of urban and street art, graffiti artists in the 21st century have retaliated against branding graffiti as a form of vandalism (https://www.widewalls.ch/20th-century-the-rise-of-graffiti/). Judge Block even recognized in his opinion, “they reflect striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5pointz. ”
This landmark case is considered a legal victory for artists because it reflects the value and importance of the history of its art and its community to New York City. For many artists, it shows that graffiti art is worthy of legal protection, and more importantly, artists are not powerless in the eyes of the law against powerful, deep-pocketed developers.
Concern for Erosion of Property Rights:
At first blush, the decision may seem like a legal victory for the artists in this particular case, but it may very possibly be a loss to artists at large. After this decision, developers will now likely have a concern that their property rights are eroding. In true Cosean fashion, the “chilling effect” caused by this decision will likely make transaction costs prohibitively expensive for business developers to grant permission to artists to create works. This decision may signal to the developers that expressions of art on their property might not allow them to secure full property rights as a property owner. As a result, artists may not be able to engage in expressions of street art that have since flourished and proliferated since the inception of the 21st century. This may be a net loss, if anything, but only time will tell.
Did the jury get it right? Arguments that could have appeared on appeal:
In a civil case, the notice of appeal required by Rule 3 must be filed with the district court within 30 days after entry of the judgment of order. See Federal Rules of Appellate procedure 4. The judgment was entered February 12, 2018, so the time to file a notice of appeal has passed. Though Wolkoff did not file for an appeal, there could have been a lot of potential for him to win if he had done so. Here, Wolkoff merely gave the artists a license to use the property, and therefore, he has the right to revoke that license at any time and continue to use his property as he wishes. Based on the information above, it seems there was no contract indicating that the murals would remain in perpetuity, and therefore Wolkoff likely had a reversionary interest.
Future Implications:
This case may not set as much of a precedent for artists than we think. It is not crystal clear from this case whether the court valued the intellectual property interests more than the real property interests because a large contributing factor for the jury’s verdict was that Wolkoff acted in bad faith. It is uncertain where the future might be for graffiti artists where developers do have clean hands. We would need to see a case where a piece of artwork under intellectual property protection remains intact on a developer’s real property, and accordingly what the court and jury decides under these conditions.
Mitchell
In response to Federal Judge Frederic Block’s decision on February 12, 2018, awarding $6.75 million to plaintiff graffiti artists, defendants moved to vacate the judgment or grant a new trial. Defendants argued that none of the plaintiffs’ art qualified as works of “recognized stature” as required under the Visual Artists Rights Act of 1990 (“VARA”). Furthermore, they claimed that the damages were excessive, arguing that defendant Gerald Wolkoff, who white-washed the graffiti-painted walls, had not acted willfully. On June 13, 2018, Judge Block issued a detailed decision that boldly explained his reasoning for rejecting defendants’ motions.
Willfulness
In his reasoning, Judge Block wrote, “Wolkoff had misled me at the preliminary injunction hearing. If he had not done that, I would not have rendered the same decision following that hearing.” At the hearing, Judge Block was under the impression that Wolkoff risked losing hundreds of millions of dollars in tax credits and benefits if 5Pointz was not demolished by the beginning of 2014 in order to be converted into a condo. As Judge Block would find out at trial, Wolkoff had never filed for the requisite demolition permit until March 2014—at least four months after he whitewashed plaintiffs’ works of art. The building was not demolished by early 2014, and yet Wolkoff did not lose hundreds of millions of dollars. Wrote Judge Block, “[m]oreover, it simply stuck in my craw that I was misled that the demolition of the buildings was imminent when there was not even an application for a demolition permit extant. I was appalled at this conscious material misrepresentation.” Whitewashing the walls of 5Pointz immediately after Judge Block had denied the preliminary injunction was unjustified “reckless and irresponsible behavior.” For those reasons, Judge Block argued, defendants’ behavior was willful, and the damages awarded to plaintiffs were entirely warranted.
Recognized Stature
The appropriate standard for determining recognized stature, as described in Carter v. Helmsley-Spear, Inc., requires that the visual art’s stature be recognized “by art experts, other members of the artistic community, or by some cross-section of society.” (emphasis added). As Judge Block explains, the word “or” means that the artist’s work only needs to be recognized by one of the three groups. Nevertheless, Judge Block demonstrates in a lengthy appendix how each of the forty-five works of art at 5Pointz that was destroyed meets all three standards. Take, for example, Judge Block’s consideration of a piece called 7 Angle Time Lapse painted by Jonathan Cohen.
Category One (recognized by art experts):
Judge Block simply pointed out that plaintiffs’ expert, Renee Vara—a certified art appraiser, former head of fine art expert at Chubb Insurance, and art professor at New York University—recognized 7 Angle Time Lapse as a meritorious work of art and a work of recognized stature.
Category Two (recognized by members of the artistic community):
Here, Judge Block listed several examples of members of the artistic community, including an art blogger, a college professor, a graffiti art writer and a director of contemporary art at an art auction house, all of which recognized the stature of 7 Angle Time Lapse. Angelo Madrigale, the art director, testified that 5Pointz and the art contained therein was equal to the Lincoln Center and Apollo Theater in cultural significance.
Category Three (recognized by some cross-section of society):
Judge Block pointed to the hundreds or thousands of daily visitors to 5Pointz as evidence that a cross-section of society recognized the stature of 7 Angle Time Lapse. He also pointed out that the work was seen by millions of passing train commuters, that it was featured in 14 documentaries, and that a jury found it achieved recognized stature.
Judge Block made it abundantly clear to defendants that he was personally offended by defendants’ manipulation of the facts and the resulting destruction of such a culturally significant area of New York. However, he emphasized that “[t]he shame of it all is that since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes,” an act which “would have been a wonderful tribute for the artists that they richly deserved.” Without even the slightest hint of regret, Judge Block denied the defendants’ motions for retrial or vacate the judgment. Defendants will continue to owe the full amount of statutory damages to plaintiffs.
Andy
In or about February 2018, Judge Frederic Block awarded $6.7 million to a group of 5Pointz artists who were suing Gerald and David Wolkoff for destroying their art. This case brought up many different facets of the law including VARA (Visual Artists Rights Act) giving artists rights to authorship of their art, only if the art was created and signed by the artist. Gerald and David Wolkoff have filed for an appeal on the matter stating that “whitewashing the art on the building is not in violation of VARA”. “We didn’t feel the decision was the correct one,” David Wolkoff told Commercial Observer.
The decision to vote in favor of the artists almost seems counter-intuitive in that developers should have greater rights to the walls on their buildings than do graffiti artists. The Wolkoff stands a good chance of reversal of the lower court order on appeal and/or reducing the damages award, which often happens on appeal.
Graffiti is seen as an illegal act in the eyes of the law. The thing we seem to forget is that the building is owned by the Wolkoff, not by the artists. The art belongs to the artists and, as VARA states, they should have had time to preserve their art, but awarding the artist $6.7 million is excessive. The main reason that Judge block decided to give them that amount is because Gerald Wolkoff lied about the urgency to get rid of the art. Rewarding the artist the maximum amount appears to be motivated, in part, by the court making an example of Wolkoff and how he shouldn’t have deceived the judge. Awarding that amount of money to the artists is outside the realm of normalcy vis-a-vis judgments for this case type. Legal outcomes must not be overwhelmed by emotion.
Anonymous
The federal Visual Artists Rights Act (VARA) grants artists limited rights over visual works that they create but do not own. The act prevents the destruction of a work recognized by the statute, and any intentional or grossly negligent destruction of that work. Therefore, even if a building owner owned a work, because the owner allowed the artist to paint on his property, the artist would still be entitled to the limited rights provided by the VARA. The question becomes, how does this right of the artist compete with the property right of the owner?
As a starting point, who really owns the work on the building? The artist painted the work; thus, the artist is the creator. Arguably, the artist is also the owner of the work and is entitled to protections. On the other hand, the property owner provided the instrument that holds the work in a tangible medium, which is required for protection of the work.
This issue was illustrated in Beatles v. Lingasong. Does this mean that the owner of the building waived his property rights when he allowed the artist to paint on his property?
Property law bestows property owners with the rights to use, alter, abandon, transfer, or destroy property which the owner has been granted ownership rights to. Here, the artists’ ability to use the building as their canvas was contingent upon the property owner’s permission. It is reasonable to assume that the artists believed the owner of the property was entitled to do whatever he wanted with the property, by virtue of his property rights, including the right to destroy or improve the property.
Further, the artist had the option to replicate their work by taking a photo of it upon completion, or even re-painting it at any other place: preferably on an instrument within the artist’s control. Visibly, the artists had the opportunity to preserve their work. The period between the completion of the work and the time the work was painted over by the property owner provided ample time for preservation. These artists should have assumed that because they were painting on an instrument that belonged to another, that person may also have some legal right to the work–or at least the instrument on which the work was placed–similar to the purchase of a book, where the purchaser owns the instrument or the medium in which the copyrighted material is placed, but not the copyrighted material. Although the purchaser may not own the right to the creation or the context in the book, under the First Sale Doctrine, the purchaser of the book still has the right to resell that copy of the work or even destroy it!
“Graffiti: Legal or Illegal” showcases the balance of rights between property rights and intellectual property rights. The article shows that when these rights come head-to-head, intellectual property rights can trump property rights. To an extent, the property owner voided his rights by allowing the artist to utilize the property as an instrument for the work. So, how can owners protect themselves against artists who they allow to use their property? By being explicit! Artists can waive their rights with a valid agreement (i.e., work made for hire). The agreement should clearly state that the property owner does not waive any property rights, and is entitled to alter, destroy, or remove the work for any reason including the destruction of the building. Such an agreement will allow property rights to trump intellectual property rights should a similar issue arise.