Jurors to Decide Whether Graffiti Was Protected By Law

BROOKLYN (CN) – During closing arguments Monday in a landmark trial pitting the value of intellectual property against that of physical property, an attorney for graffiti artists called a New York real estate developer’s whitewashing of 350 works of graffiti art “a senseless and malicious act.”

“This isn’t only a loss to the 21 artists,” attorney Eric Baum of Manhattan-based Eisenberg & Baum said Monday morning to the jury of six, which was short-handed due to one juror being out sick.

Several of those artists sat at a table behind him, while others watched from a TV screen via Skype. Many had testified during the trial in Brooklyn federal court.

“It’s a loss for New Yorkers and people all around the world,” Baum added.

In the early 1990s, real estate developer Jerry Wolkoff struck a deal with local graffiti artist Jonathan “Meres One” Cohen that allowed Cohen to use Wolkoff’s building in Long Island City if he assembled a collection of artists who avoided religion, politics and porn.

Over the next two decades, the 5Pointz mural space became an international tourist destination and “graffiti mecca,” as artist Lady Pink described in her testimony.

But one night in 2013, a handful of workers hired by Wolkoff whitewashed the building.

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.

Their bid was unsuccessful, as the buildings were demolished in 2014.

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

Senior U.S. District Judge Frederic Block consolidating the two cases in April and ruled Wolkoff must face trial for alleged violations of the Visual Artists Rights Act, or VARA, a 1990 federal law that allows for damages if a protected artwork is destroyed.

VARA states that works of art, no matter how temporary, are protected if they are of “recognized stature.”

The graffiti artists argued they would have taken steps to extract their art from the 5Pointz buildings or otherwise preserve it if they had had the 90-day written removal notice required by VARA.

Wolkoff countered that street art is short-lived by nature and that if the artists were so interested in preserving their work, they should have done so all along regardless of whether the building was coming down.

“It was never about the art,” defense attorney David Ebert said during closing arguments Monday. “It was about the building.”

It is now the jury’s job to decide whether each of the 49 whitewashed artworks in the case are protected by VARA, and if so, what kind of damages must be awarded for each one.

Baum told jurors they are the first to ever decide a case under VARA.

“We’re treading unique waters here,” Judge Block said last week.

Wolkoff testified during trial he whitewashed the buildings because he had heard “rumblings” that people were planning to chain themselves to the buildings and wanted to protect them from getting arrested. He has since built luxury high-rise apartment buildings at the 5Pointz location.

He admitted that he liked the art.

“I cried when I took it down,” Wolkoff said, inciting a collective grunt from the mostly pro-artist gallery.

The chippy and emotional three-week trial, which seemed ready-made for a screenplay, has frothed with tense moments, raised voices and head-shaking on both sides.

Given the lack of VARA precedent, it is unclear how long the jury will deliberate.

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