United States: Multimillion Dollar "Moral Rights" Judgment For 5Pointz Graffiti Artists

Last Updated: March 2 2018
Article by Nicole Kinsley

It's been a few years since we first wrote about the 5Pointz dispute, where graffiti artists first tried to prevent the destruction of their works by the owner of the spray-painted buildings, and then sought money damages for their destruction. Gerald Wolkoff is widely portrayed as the "bad guy" in this story – while he claims that he sought only to redevelop property he owned, his late-night whitewashing infuriated the art community – and he has suffered a string of significant defeats, leading up to this month's multi-million dollar verdict for the artists.

Trademark Dispute

First, Wolkoff attempted unsuccessfully to register 5POINTZ as a trademark for real estate services, which provoked outrage from the artists and their fans. They thought his claim to ownership in the name allegedly coined by the artists themselves was adding insult to injury. It might have been an interesting legal battle, if the artists had tried to assert their trademark rights in connection with the now-destroyed art and ancillary goods and services (like merchandise and tours) against Wolkoff's desire to protect the mark for real estate services, but things never got that far. The USPTO refused Wolkoff's application due to a likelihood of confusion with an earlier-filed application unrelated to the dispute.

VARA Litigation

Last year, Wolkoff failed to end the VARA litigation through summary judgment. VARA stands for the Visual Artists Rights Act, which is designed to protect the "moral rights" of visual artists, in relation to their works. The judge did remove the artists' state law claims from the case, finding that property damage, conversion, and even intentional infliction of emotional distress were preempted by VARA. The judge also dismissed Wolkoff's abuse of process counterclaim, finding that the artists were doing exactly what they were entitled to under VARA. What survived was the VARA claim itself, as the judge found that graffiti can have the required "recognized stature."

Last November, after a three-week trial during which the judge threatened to hold Wolkoff in contempt, a jury found that Wolkoff had willfully violated artists' rights with respect to 36 of 49 pieces at issue. But, just before closing arguments, the parties waived their right to a jury. Rather than disband the jury, the judge allowed it to complete its service, but viewed its verdict as a recommendation only. This month, the judge issued his own decision and awarded the artists maximum statutory damages for 45 of the murals (the artists failed to prove actual damages). That's a total of $6.7 million.

The judge said he meant for the award to serve as a deterrent to Wolkoff and others. Owners of real estate are now on notice that art they may not take seriously can be a very serious matter indeed.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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