Graffiti-Whitewash Appeal Lands With Thud at 2nd Circuit

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MANHATTAN (CN) – A developer on the hook for $7 million after he painted over graffiti that had turned a collection of Queens warehouse buildings into the icon that was 5Pointz struggled Friday to secure a reversal from the Second Circuit.

Denying that graffiti is protectable under the 1990 Visual Artists’ Rights Act, Jones Day attorney Meir Fader tried to make the case that the artists themselves would also be in violation when they painted over each other’s work. 

“I am not arguing that nothing temporary could ever achieve recognized stature … it’s the fact that this is all part of a larger operation of ‘creative destruction,’” Fader said, arguing before a three-judge appeals court in Manhattan. 

It was fall 2013 when the muse of destruction inspired Fader’s client, Gerald Wolkoff, to demolish the warehouse properties he had owned for over a decade so he could make way for luxury condominiums in the rapidly gentrifying Queens neighborhood of Long Island City.

Led by Jonathan Cohen, the so-called aerosol artists whose dramatic works dominated the warehouse landscape took Wolkoff to court.

A court denied them an injunction but made sure to emphasize that the VARA issue remained unsettled. Despite the warning that any pre-emptive action he took against the artwork could expose him to money damages, Wolkoff elected to whitewash all the buildings in the eight days it took the court to deliver its VARA ruling.

U.S. District Judge Frederic Block awarded the artists nearly $7 million in damages last year, setting the stage for Wolkoff’s appeal.

The appellate panel was quick this morning to push back against Fader’s argument that ephemeral art might be less than deserving of federal protection.

“There are all kinds of galleries that perhaps you and I don’t go to that have temporary installations,” said U.S. Circuit Judge Barrington Parker, who owes his seat on the bench to President George W. Bush.

Fader insisted that Judge Block had given too much weight to the testimony of appraiser Renée Vara, and he also took issue with the judge for awarding maximum damages “across the board.”

“These were all things that were part of a large operation,” he said. 

Here, too, however, the panel pushed back.

“Well, so is the Metropolitan Museum of Art,” said U.S. Circuit Judge Raymond Lohier, who was appointed by President Barack Obama.

Speaking for the artists Friday, Eisenberg & Baum attorney Eric Baum said there was “etiquette” in place at 5Pointz. He noted that Cohen, whom Wolkoff himself had designated as curator of the space, did not permit anyone to remove longstanding works without express permission from the artist. Rotating walls of art by less-established artists were understood to host ephemeral works.  

Lohier asked Baum if a work of art could attain recognized stature entirely based on its location. Baum said that could be a “starting point.” 

U.S. Circuit Judge Reena Raggi, another Bush appointee, maintained location does matter. Like an open-air museum, 5Pointz was an international tourist destination and attracted the world’s best aerosol artists.

“If a chip comes from the Parthenon, it’s going to have a stature” greater than from a building on 34th Street, said Raggi. “Any scribble by Picasso is going to have more stature than something I scribble here today.”

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