Court Upholds Massive Judgment for 5Pointz Graffiti Artists

MANHATTAN (CN) — Upholding a $6.75 million judgment against a luxury real estate developer, the Second Circuit affirmed Thursday that his whitewashing of graffiti murals at 5Pointz violated the Visual Artists Rights Act.

“The biggest victory is the recognition of the art form, and seeing moral rights prevail in the United States,” said Marie Flageul, who has worked closely with the 5Pointz artists and is a curator at New York City’s Museum of Street Art, in a phone interview Thursday.

At 32 pages, Thursday’s ruling sums up the little-known Visual Artists Rights Act in a two-sentence footnote.

“The statute recognizes that, unlike novelists or composers, for example, visual artists depend on the integrity of the physical manifestations of their works,” wrote U.S. Circuit Judge Barrington Daniels Parker Jr., who penned the opinion on behalf of a three-judge panel.

Eric Baum, an attorney for the artists with the firm Eisenberg & Baum, called the ruling a “landmark” and “monumental win for the rights of all artists in this country.”

“This decision ensures that future artists and their moral rights will have the protections that they and their works of art rightfully deserve,” Baum said.

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5Pointz came into being around 2002 when developer Gerald Wolkoff linked up with Jonathan Cohen, a well-respected aerosol artist, to install some pieces at a collection of dilapidated warehouse buildings he owned in Long Island City, Queens.

As curator for the space, Cohen invited some of the world’s best-known graffiti artists to make work on the walls. 5Pointz became a tourist destination, but the ensuing gentrification of the neighborhood would also be 5Pointz’s downfall.

In 2013, the artists learned that Wolkoff was planning to destroy the warehouses to make way for luxury condominiums. They first sought landmark status and then invoked VARA.

Wolkoff left little to chance, bringing in workmen to whitewash the artworks as soon as U.S. District Judge Frederick Block refused to issue an injunction.

Because VARA requires 90 days’ notice to the artists before destroying their art, however, a jury found Wolkoff liable for his destruction of 36 artworks.

Appointed to the appellate bench by President George W. Bush, Judge Parker noted Thursday that the main dispute on appeal was whether the artworks were of “recognized stature,” a requirement under VARA.

“Since recognized stature is necessarily a fluid concept, we can conceive of circumstances under which, for example, a ‘poor’ work by a highly regarded artist — e.g., anything by Monet — nonetheless merits protection from destruction under VARA,” Parker wrote. “This approach helps to ensure that VARA protects ‘the public interest in preserving [the] nation’s culture.’ This approach also ensures that the personal judgment of the court is not the determinative factor in the court’s analysis.”

The Second Circuit made short shrift of Wolkoff’s argument that the necessarily temporary quality of the artwork at 5Pointz clashed with VARA’s standards.

“Although a work’s short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognized stature,” Parker wrote.

The panel used famed street artist Banksy as an example, noting that he’d been named on Time magazine’s list of the world’s most influential people alongside President Barack Obama and Steve Jobs.

“Though often painted on building walls where it may be subject to overpainting, Banksy’s work is nonetheless acknowledged, both by the art community and the general public, as of significant artistic merit and cultural importance,” Parker wrote, referencing the famously self-destructing framed copy of the Banksy piece “Girl With Balloon.”

Barrington also emphasized that, when it comes to recognition of artworks, location matters.

“Appearance at a major site — e.g., the Louvre or the Prado — ensures that a work will be recognized, that is, seen and appreciated by the public and the art community,” the opinion states.

“The appearance of a work of art at a curated site such as a museum or 5Pointz means that the work has been deemed meritorious by the curator and therefore is evidence of stature.”

Parker called Wolkoff’s destruction of the artworks wilfull, saying the developer could have drawn up a contract to that end if he wanted to argue that the artists should have known their work would be torn down eventually.

Wolkoff, who testified at the trial, has said he “would make the same decision today.”

Parker wrote that the developer’s conduct and attitude underscores the need for deterrent statutory damages.

“Most troubling to the district court and to us is Wolkoff’s decision to whitewash the artwork at all,” the panel wrote. “Nothing in the record indicates that it was necessary to whitewash the artwork before beginning construction of the apartments.”

The panel also included U.S. Circuit Judges Reena Raggi, another George W. Bush appointee, and Raymond Lohier, a Barack Obama appointee.

Meir Feder, who represented Wolkoff in the appeal, could not immediately be reached for comment Thursday.

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