5 Pointz: Graffiti and the Law
The Winters Law Group is a proud sponsor of Lexington’s annual street art festival, PRHBTN, which is now in its 9th year. This month, street artists from around the world will be in Lexington installing large-scale public murals that bring art to our streets and into our daily lives. Having represented artists over the years in a variety of contractual disputes and with regard to copyright issues, I found the recent decision in Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421, 426-28 (E.D.N.Y. 2018) link, regarding street artists rights under a federal law called the Visual Artists’ Rights Act, to be interesting and timely.
Cohen, which is a landmark victory for street artists, recognizes that aerosol art rises to the stature of visual art that is protected from destruction until and unless the artist is notified of the impending destruction and given the opportunity to move or salvage the artwork. It is the first decision awarding street artists substantial damages – 6.7 million – under VARA.
The case arose from the destruction of the world-famous street art mecca 5 Pointz. 5 Pointz was an abandoned warehouse in Long Island City, New York. In the 1990s, at the request of a few graffiti artists, the owner of the warehouse – Wolkoff – granted permission to “tag” the warehouse. By 2002, the warehouse had become a popular tourist destination, and even had its own art curator who regulated the quality and placement of graffiti on the otherwise abandoned warehouse building. Colorful graffiti, distinctive paintings, stencils, and tags covered all available walls of the warehouse.
During 5 Pointz’s height of fame, as many as ten tourist buses a day brought tourists to visit the site, over 150 travel guides mentioned it as an attraction in New York, Time Out New York included it in its “must-see” guide, and it appeared as the backdrop in music videos, television shows, and wedding and engagement photos. In 2013, Wolkoff planned to tear down 5 Pointz and construct two new $ 400 million glass and steel high-rise luxury apartment towers in its place. Wolkoff claimed that it would be too expensive to maintain the facade of 5 Pointz while gutting and constructing his new apartment buildings.
There was vocal support to preserve 5 Pointz – or at least the murals on 5 Pointz – from New York City residents and national and international art forums. A number of the graffiti artists whose artworks were at risk sued Wolkoff to enjoin the destruction of their art. After the graffiti artists lost their preliminary injunction motion in the United States District Court for the Eastern District of New York, Wolkoff whitewashed the building under cover of night and without notice to the artists, destroying all of the artwork on the facade. 5 Pointz has since been demolished and condos now stand in its place.
After the whitewashing, the plaintiffs in the original action filed an amended complaint describing in detail the secretive and unexpected nature of the event and revising their claims to include additional violations of VARA and access to enhanced damages for the wanton destruction of the art. In addition, four other artists filed an identical complaint on June 3, 2017, bringing the total number of artist plaintiffs to twenty-one and the number of pieces in dispute to forty-nine.
The Cohen ruling held that the artists had met the VARA requirements, the first of which being that the aerosol art pieces at issue were works of “recognized stature” in the art community. The Court ruled that the artworks easily met this threshold, citing expert opinions from professors and art appraisers as to the value and renown of the works, and referencing the works’ popularity among tourists, art buffs, and film crews.
The artists further established that the works were destroyed, and that Wolkoff had violated Section 113(d)(1) of the Act, which specifically addresses art that has been incorporated into a building, and provides that the destroyer must use good faith efforts to notify the artist and provide them with 90 days to remove or pay for the removal of their artwork (or waive their rights).
The Court found that Wolkoff acted maliciously and deliberately ignored the artist’s rights by failing to provide them with requisite notice of his intention to destroy their artworks, and awarded the artists the maximum damages available under the act.
The Cohen decision demonstrates that street art has evolved and is becoming a more important part of our culture, and I hope to see its analysis employed in other fights to save important pieces.
- Jessica Winters, Managing Member
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