BROOKLYN, N.Y. (CN) – A developer who whitewashed iconic graffiti work at the warehouse buildings known as 5Pointz in Queens must pay the artists nearly $7 million in damages, a federal judge ruled Monday.
Dedicating about half of his 100-page opinion to images of the lost graffiti, U.S. District Judge Frederick Block noted that the significant damages are the key to what is known as the “deterrent effect” of the Visual Artists Rights Act.
“Without a significant statutory damages award, the preservative goals of VARA cannot be met,” Block wrote, using an abbreviation for the 1990 statute. “If potential infringers believe that they can violate VARA at will and escape liability because plaintiffs are not able to provide a reliable financial valuation for their works, VARA will have no teeth.”
Jonathan Cohen and eight other aerosol artists brought their VARA claims in October 2013 when their work was still intact.
Around that time, property owner Gerald Wolkoff had made a deal to have the buildings razed and replaced with luxury high-rise condos.
And though the artists were denied injunctive relief, Block said Wolkoff was put on notice at the time that any violation of VARA, which would be determined later, could expose Wolkoff to significant money damages.
Wasting little time, Wolkoff did not even have the building permits in hand when he whitewashed the graffiti.
Because VARA requires 90 days’ notice to the artists before destroying their art, a jury found Wolkoff liable under the law after a three-week trial.
“If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the court would not have found that he had acted willfully,” Block wrote.
While Block slammed Wolkoff’s conduct as insolent, he noted how “the court was impressed with the breadth of the artists’ works and how many of the works spoke to the social issues of our times.”
“The shame of it all is that since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time,” the opinion concludes. “It would have been a wonderful tribute for the artists that they richly deserved.”
VARA states that works of art, no matter how temporary, are protected if they are of “recognized stature.”
Though the jury determined that Wolkoff was liable with respect to 36 of the 49 works of art, Block brought another nine works into his damages award Monday, saying they were “wrongfully and willfully destroyed in the combined sum of $6,750,000.”
The ruling also recounts Wolkoff’s “problematic” conduct on the witness stand in November — the judge and the developer got into several shouting matches during Wolkoff’s testimony.
“On the other hand,” Block wrote, “the plaintiffs have conducted themselves with dignity, maturity, respect, and at all times within the law. Therefore, this factor also cuts heavily in favor of a high statutory damages award.”
Lead plaintiff Cohen will receive the most damages of the artists, $1.325 million total.
“5POINTZZZZZZZZ 4EVERRRRRR!!!!” he posted on his Instagram page Monday.
Most of the other plaintiffs will collect six figures.
Eric Baum, an attorney for the artists with the firm Eisenberg & Baum, has not returned a request for comment.
Wolkoff has not returned a phone call seeking comment nor has his attorney David Ebert, with the firm Ingram Yuzek Gainen Carroll & Bertolotti.