United States: Street Artists Awarded $6.75 Million In Damages Against Developer Who Whitewashed Artworks Covering His Buildings

In one of the most important decision to date applying the Visual Artists Rights Act of 1990 (VARA) since its adoption, on February 12, 2018, New York's Eastern District awarded $6.75 million in statutory damages to 21 aerosol artists whose works were intentionally destroyed by the owner of the buildings on which they were painted.

Gerald Wolkoff and his four real estate entities owned several dilapidated warehouses in a formerly crime-infested neighborhood in Long Island City, known as 5 Pointz. Around 2002, Wolkoff agreed to let Jonathan Cohen, one of the world's most accomplished aerosol artists (known professionally as Meres One), curate the artworks that were put on the walls of 5 Pointz to cover random graffiti. Cohen created a veritable competition between street artists, who vied to win a place on one of the project's "long-standing walls." Ultimately, Cohen's efforts led to a change in the quality of the neighborhood, turning 5 Pointz into a world renowned "graffiti Mecca." The site, featured in TV shows, video games and the 2013 motion picture Now You See Me, became a destination for weddings and school trips, not to mention a major tourist attraction.

Around 2013, after the economic conditions in the area improved significantly, Wolkoff sought municipal approvals to demolish the warehouses and erect luxury condominiums. The artists sought a preliminary injunction to preserve 5 Pointz for street artists. The injunction was denied by the court in November 2013 in a ruling from the bench, with a caveat that a written opinion would follow shortly. Without waiting for the written opinion, Wolkoff had the walls of 5 Pointz painted, covering some artworks completely and some only partially. Unfortunately, none of the artworks was salvageable. Twenty-one artists filed suit, seeking damages for the destruction of their works under VARA.

VARA was enacted to protect the moral rights of artists in their works of visual art as distinguished from the ownership rights in the works. The statute gives artists the right to sue to prevent the destruction of a work of "recognized stature," a term VARA does not define. Additionally, an artist may seek money damages if their work is distorted, mutilated or otherwise modified to the prejudice of the artist's honor or reputation. With respect to artworks made part of a building, VARA distinguishes between removable and non-removable artworks. The artist may sue to prevent the destruction of non-removable artwork unless he or she had a written agreement with the owner of the building that specified the artwork may subject it to "destruction, distortion, mutilation, or other modification, by reason of its removal." See 17 U.S.C. §113(d)(1)(B). Wolkoff had no such agreements with the artists.

VARA gives the artists an opportunity to remove their works upon 90 days' notice that the building's owner wishes to remove the artwork. See 17 U.S.C. §113(d)(2)(A)-(B). If the artist fails to remove the artwork, or if the owner could not notify the artist despite a good faith effort to do so, the owner may destroy the work without consequences. Id. The 5 Pointz artists were never afforded the opportunity to remove their works.

The 5 Pointz trial began in mid-October 2017 and lasted three weeks. At the eleventh hour, plaintiffs decided to convert the case to a bench trial. The court, acknowledging the work of eight jurors that followed the case with rapt attention for weeks and − recognizing the cultural significance 5 Pointz had achieved in the local community and worldwide − chose to try the case with the advisory jury, meaning that the court is not bound by the jury's findings but may choose to be guided by them.  In November 2017, the jury issued a non-binding verdict that 36 of the works at 5 Pointz were art of "recognized stature."  Judge Block did more than merely adopt the jury's findings; he found that an additional nine works qualified for liability and he found Wolkoff's actions to be willful, warranting harsher damages.

Judge Frederic Block of the Eastern District made several important rulings that will likely have an effect on future interpretations of VARA nationwide.

  • First, Judge Block gave a road map of the kind of proof needed to demonstrate that an artwork is of "recognized stature," and whether its distortion would be detrimental to the artist's honor and reputation. Specifically, the plaintiff artists demonstrated an impressive array of professional achievements and recognition in the form of fellowships, teaching positions, public and private commissions, media coverage and social media buzz. Plaintiffs submitted the testimony of high-profile luminaries in the field to assert quality, stature, value and potential removability of each work. Judge Block even cited with approval the decision in Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999), suggesting that "recognized stature" may be sufficiently shown by "certain newspaper and magazine articles" and recommendation letters from the art community.
  • Significantly, Judge Block determined that even artworks that are temporary in nature are protected under VARA, even though VARA does not directly address this issue. Noting that VARA is part of the Copyright Act, under which a work is "created" when fixed in a copy or phonorecord sufficiently to be perceived for a period of more than transitory duration, Judge Block pronounced that fixation even for a short period will suffice. Possible short life span of artworks is an issue with street art, as it may be and frequently is covered over by new street art, although the 5 Pointz previous artworks were not destroyed or painted over by incoming artists without permission.
  • Finally, Judge Block analyzed the artists' proof of damages and found that actual damages could not be shown as the plaintiffs did not establish a reliable market value of their works, some of which were the size of an entire building wall and thus hard to sell. The court did award the maximum available statutory damages for each of the destroyed artworks at issue, at $150,000 each for the 45 works found to be of "recognized stature," holding that Wolkoff acted willfully and has been insolent and "singularly unrepentant." Thus, Judge Block significantly increased the award that the jury would have given to the artists, which was $545,750 in actual damages and $651,750 in statutory damages.

This case was appealed to the Second Circuit Court of Appeals within days of the Decision. As this is a case of first impression for the Second Circuit on issues such as what is considered an artwork of "recognized stature" under VARA, it will be an important case to watch for street artists and property owners.

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