IP Law Daily $6.75M award to aerosol artists affirmed for destruction of ‘5Pointz’ paintings
Friday, February 21, 2020

$6.75M award to aerosol artists affirmed for destruction of ‘5Pointz’ paintings

By Thomas Long, J.D.

The paintings, although temporary, had achieved "recognized stature" as artworks and were protected by the Visual Artists Rights Act.

Artists who created "aerosol art" paintings on the exteriors of buildings in the well-known "5Pointz" area of Long Island City, New York, with the consent of the buildings’ owners, were properly granted $6.75 million in statutory damages resulting from the owners’ destruction of the works, according to the U.S. Court of Appeals in New York City. The federal district court in Brooklyn correctly determined that temporary artwork may achieve "recognized stature" so as to be protected from destruction by the Visual Artists Rights Act of 1990 (VARA) and that the work at issue had achieved that stature. The appellate court also held that the district court did not err in finding the VARA violations to be willful and that the district court’s award of statutory damages was not an abuse of discretion (Castillo v. G&M Realty L.P., February 20, 2020, Parker, B.).

"5Pointz." The paintings were located on the exteriors of a group of buildings in Long Island City, New York, that had become known as "5Pointz." The buildings were regarded as the repository of the largest collection of "exterior aerosol art" (also known as "graffiti art") in the United States. Starting in the early to mid-1990s, the exterior walls of the buildings had become a target for distasteful graffiti by many self-proclaimed aerosol artists. In 2002, plaintiff Jonathan Cohen approached defendant Gerald Wolkoff, who was the effective owner of the buildings, and offered to serve as a curator of works that would be permitted to be painted on the walls in order to control the graffiti problem. Wolkoff gave oral consent to permit qualified aerosol artists, under Cohen’s control, to display their works on his buildings.

Over time, the quality of the art improved, and the 5Pointz site evolved into a mecca for high-end works by internationally recognized aerosol artists. Hundreds of school tours had visited the site, and several events—such as musical performances, photo shoots, and the filming of motion picture scenes—had taken place there.

Despite the fact that 5Pointz had become a tourist attraction—as acknowledged by the defendants—Wolkoff and the other defendants reached a decision to knock down the buildings to make room for two apartment complexes containing approximately 1,000 residences. Although he considered the plaintiffs’ artwork to be "beautiful," Wolkoff said there was no feasible engineering way that he could preserve the existing buildings and incorporate them into the new ones.

Cohen and other artists filed suit to prevent the works’ destruction, asserting VARA and common-law tort claims. On November 12, 2013, the district court denied the plaintiffs’ request for a preliminary injunction. Eight days later, Wolkoff destroyed almost all of the plaintiffs’ paintings by whitewashing them. The court noted that, at the time it denied injunctive relief, it had cautioned the defendants that they could ultimately face liability for damages if they destroyed the paintings.

VARA claims. VARA (17 U.S.C. §106A) amended the Copyright Act to add protections for two "moral rights" of artists: the rights of attribution and integrity. The right of integrity allows an artist to prevent any deformation or mutilation of his or her work, even after title in the work has been transferred. VARA also provides for protection against the destruction of works of visual art, but only if they are works of "recognized stature."

Even if an artwork protected by VARA was destroyed, the statute provided for monetary damages if it was determined at trial that the destroyed work was of "recognized stature," the court explained. On March 31, 2017, the district court decided to allow the VARA claims to go to trial, holding that the plaintiffs had raised enough evidence of "recognized stature" to create a genuine issue of material fact. This evidence included Cohen’s multiple commissions from commercial entities; another artist’s commissions from some of Brazil’s famous brands; a third one’s hiring by celebrity clients and a public park; the opinions of leading museum professionals and other artists; the individual artist’s social media followers and their works’ Google hits; praise in the media and among academics; and numerous awards.

Advisory jury. After the jury was empaneled and both parties had presented evidence, the plaintiffs, prior to summations, and with the defendants’ consent, waived their jury rights. Rather than summarily dismissing the jury after it had sat through the entire trial, the district court converted it to an advisory jury. The district court was not bound by the jury’s findings, but it took the jury’s verdicts under advisement in making its independent findings of fact and conclusions of law.

The jury made individualized findings as to each artist and work and found violations of VARA as to 36 of the 49 works that were whitewashed. In particular, the advisory jury found that 28 works had achieved recognized stature and had been unlawfully destroyed and that eight other works had been mutilated or distorted to the detriment of the artists’ reputations. It recommended an award of $545,750 in actual damages and $651,750 in statutory damages.

District court’s decision. On February 12, 2018, the district court issued its findings of fact and conclusions of law. The court found that 45 of the works had achieved recognized stature, that Wolkoff had violated VARA by destroying them, and that the violation was willful. The findings emphasized Cohen’s prominence in the world of aerosol art, the significance of his process of selecting the artists who could exhibit at 5Pointz, and the fact that, while much of the art was temporary, other works were on display for several years. Although the district court opined that expert testimony as to actual damages, while extensive, did not enable the court to reliably fix the market value of the destroyed paintings, the district court awarded the maximum amount of statutory damages: $150,000 for each of the 45 works, for a total of $6.75 million. The district court agreed with the advisory jury’s finding that Wolkoff acted willfully with respect to each work destroyed. There was expert evidence that removal of the works from the building walls was feasible, and that similar acts of preservation had been accomplished, including graffiti from sections of the Berlin Wall. In the district court’s view, Wolkoff’s destruction of the works soon after the motion for a preliminary injunction was denied "was an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art. This was the epitome of willfulness."

"Recognized stature." The crux of the parties’ dispute on appeal was whether the works at 5Pointz were works of "recognized stature," thereby protected from destruction 17 U.S.C. § 106A(a)(3)(B). The Second Circuit concluded that a work is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community. Reviewing the district court’s findings for clear error, the appellate court declined to "revisit and reconsider a number of [the district court’s] decisions that were debatable." The appellate court rejected Wolkoff’s contention that the great majority of the works in question were temporary and could not meet the recognized stature requirement, stating that nothing in VARA excluded temporary artwork from attaining recognized stature. The Second Circuit noted several examples of temporary art that had achieved high acclaim, including works by well-known artists Christo and Banksy. Moreover, if Congress wanted to impose durational limits on work subject to VARA, it knew how to do so, but did not.

Wolkoff also argued that that the lower court erroneously focused on recognized quality, rather than recognized stature, and that, contrary to the approach allegedly taken by the district court, recognized stature must be assessed at the time of a work’s destruction, not at the time of trial. The appellate court was not convinced that the district court’s findings were clearly erroneous. The district court had stated that stated that the "focus of [its] decision was the recognition the works achieved prior to the whitewash." The Second Circuit added, "In any event, the quality of a work, assessed by an expert after it has been destroyed, can be probative of its pre-destruction quality, status, or caliber." Nor did the appellate court see merit in Wolkoff’s criticism of the district court’s decision to credit the artists’ experts, noting that the district court had given sound reasons for its choice to credit the artists’ experts over the defendants’. Additionally, the district court did not improperly focus on the stature of the 5Pointz site as a whole, but correctly focused on each individual painting. Even so, the appellate court explained, "we easily conclude that the site of a work is relevant to its recognition and stature and may, in certain cases, render the recognition and stature of a work beyond question."

"The evidence supporting the district court’s findings is vast, and we do not arrive at ‘the definite and firm conviction that a mistake has been committed,’" said the appellate court. "Because the district court applied the correct legal standard and did not commit clear error, its determination as to liability is affirmed."

Damages. With respect to the statutory damages award, which depended in part on the lower court’s finding that the VARA violations were willful, the Second Circuit reviewed the district court’s finding of willfulness for clear error, and found none. Wolkoff admitted his awareness, prior to destroying 5Pointz, that the artists were pressing VARA claims. Wolkoff knew of VARA’s provisions limiting artists’ rights when building owners give them 90 days’ notice and the opportunity to remove their artwork, but instead chose not to wait. The appellate court agreed with the district court that this conduct indicated a deliberate choice to violate VARA rather than to follow the statutory notice procedures.

"Most troubling to the district court and to us is Wolkoff’s decision to whitewash the artwork at all," the Second Circuit said. "Nothing in the record indicates that it was necessary to whitewash the artwork before beginning construction of the apartments." The appellate court held that the district court was entitled to conclude, based on the record, that Wolkoff acted willfully and was liable for enhanced statutory damages.

Further, the Second Circuit found no abuse of discretion in the district court’s decision to award the maximum amount of statutory damages. The district court carefully considered the six factors relevant to a determination of statutory damages and concluded that "Wolkoff rings the bell on each relevant factor." Those factors are: (1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties. According to the Second Circuit, the record supported the district court’s conclusions. Accordingly, the judgment of the district court was affirmed.

This case is Nos. 18-498-cv (L) and 18-538-cv (CON).

Attorneys: Eric M. Baum (Eisenberg & Baum, LLP) for Maria Castillo. Meir Feder (Jones Day) for G&M Realty L.P.

Companies: G&M Realty L.P.

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