BROOKLYN (CN) – A federal jury in New York on Tuesday awarded thousands of dollars in damages to graffiti artists whose work was whitewashed under order of a real estate developer who owned the building they painted on.
The jury only deliberated for about a day, despite having to reach separate verdicts for each of the 49 artworks at issue in the case. Senior U.S. District Judge Frederic Block presided.
During an unprecedented three-week trial, 21 graffiti artists testified, as did defendant Jerry Wolkoff – the building’s owner – art experts and an art buyer.
The case drew national attention due to the renown of the graffiti’s demolished home in Long Island City. Once a tourist attraction and “graffiti mecca,” 5Pointz is now a pair of high-rise luxury apartment buildings.
Plaintiffs’ attorney Eric Baum of Eisenberg & Baum accused Wolkoff of destroying art that was protected under the obscure Visual Artists Rights Act by whitewashing it without warning overnight.
“We know that ignorance of a law is no excuse for violating it,” Baum said in his closing argument Monday. He called the whitewashing “the worst intentional destruction or mutilation of art in U.S. history.”
Wolkoff’s attorney David Ebert of Ingram Yuzek Gainen Carroll & Bertolotti argued street art’s ephemeral nature should have prepared the artists for their work’s disappearance.
“They’re telling you that because I put my artwork on the side of a building, I am entitled to rights that trump your property rights,” Ebert told jurors Monday. He also said none of the artists suffered any actual financial or reputational losses.
The jury found otherwise, however, and used a tiered system under Visual Artists Rights Act to decide damages. Among the deciding factors in the tiers are whether each art piece was a work of “recognized stature,” whether it had been partially mutilated or completely destroyed, and whether the artist’s reputation had been damaged as a result.
They awarded damages for about two-thirds of the pieces. About half of the works the jury found to be “recognized stature” – meaning art experts, members of the art community or a cross-section of society recognized it.
Jurors also found the destruction of the work had been harmful to the “honor or reputation” of the artist in half the cases, even for some works that didn’t belong to the “recognized stature” category.
Amounts awarded by the jury varied widely, from $750 to $80,000. In several cases the jury awarded statutory damages but no actual damages. Statutory damages for instances where the defendants were found to have acted willfully could have topped $150,000.
The jury awarded the largest statutory award of $80,000 to artist Francisco Fernandez for “Dream of Oil.”
“We have the VARA law,” Baum told the jury Monday, “but without you, there’s no mechanism for enforcement.
And since the jury found for the artists in many case, Castillo et al v. G&M Realty et al. could set a precedent for protection of street art in the future.
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