Judge Sends 5Pointz Graffiti Artists to Trial

BROOKLYN, N.Y. (CN) – A federal judge paved the road to trial for graffiti artists whose work at New York City’s 5Pointz was razed to make room for high-rise condominiums.

Long Island City’s graffiti mecca grew out of an initially begrudging 2002 agreement between developer Gerald Wolkoff and one of the artists, Jonathan Cohen, to control the uninvited graffiti defacing Wolkoff’s buildings.

The deal made Cohen, who tags under the name Meres One, volunteer curator and manager of the aerosol art program, complete with an office.

Cohen said that Wolkoff gave him “full authority” to determine what could be painted there, and even gave him keys and space to store spray paint, ladders and other supplies for Cohen and other artists.

In 2013, Cohen led at least a dozen other artists in suing Wolkoff’s companies to stop them from demolishing the 5Pointz buildings and replacing them with two-high rise towers containing 800 luxury rentals and more than 200 affordable units.

Another group of artists filed suit as well in 2015 after Wolkoff whitewashed over their 350-plus works in preparation for the demolition.

Consolidating the two cases for summary judgment, Senior U.S. District Judge Frederic Block ruled Friday that the developer must go to trial for alleged violations of the Visual Artists Act.

This 1990 law allows for damages if a protected artwork is destroyed.

Block rejected the developer’s attempts at denigrating the expert tapped by the artists to defend the stature of their works.

“Here, when one looks at the pertinent reports, the plaintiffs’ expert used a variety of factors in reaching her conclusion regarding the seeming stature of plaintiffs’ work, including Cohen’s multiple commissions from such entities as Coors, Heineken, Swatch, and Deutsche Bank,” the 15-page opinion states. Block noted that another artist was commissioned by some of Brazil’s famous brands, while a third has been featured by celebrity clients and a public park.

The artists’ expert also pointed to the “opinions of leading museum professionals and other artists; the individual artist’s social media followers and their works’ Google hits; flattering newspaper accounts in The Boston Globe, The New York Times, and New York Magazine; academic approval; private and public exhibitions of the artists’ other work throughout the United States and other nations; numerous awards, including induction in the Graffiti Hall of Fame; and more,” according to the ruling.

“By citing such evidence, all of which courts have deemed as relevant to the question of recognized stature and may reasonably indicate a specific artist’s place in the art world (and, by association, their workss’) [sic], the plaintiffs’ expert’s report here ‘explain[ed] in detail which documents were reviewed, relevant industry customs and practices, and the general bases for … [her] opinions,’” Block wrote.

“Any remaining problems with the expert are for the jury to decide,” he added.

The artists failed to sway the court, however, on their case for emotional distress.

“Because the defendants destroyed 5Pointz only after the court dissolved its temporary restraining order and did no more than raze what they rightfully owned, the defendants simply did not engage in the kind of outrageous and uncivilized conduct for whose punishment this disfavored tort was designed,” Block wrote.

In addition to his battle with the artists, Wolkoff courted labor trouble last year that prompted protests surrounding the job site, complete with inflatable rats. 

Wolkoff’s companies are represented by David Ebert at Ingram Yuzek Gainen Carroll & Bertolotti LLP in Manhattan.

The artist plaintiffs are represented by Eric Baum with Eisenberg & Baum in Manhattan.

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