IP Law Daily Aerosol artists granted $6.75M under VARA for destruction of ‘5Pointz’ paintings
Tuesday, February 13, 2018

Aerosol artists granted $6.75M under VARA for destruction of ‘5Pointz’ paintings

By Thomas Long, J.D.

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 entitled to $6.75 million in statutory damages resulting from the owners’ destruction of the works, the federal district court in Brooklyn has determined. The building owners violated the Visual Artists Rights Act of 1990 (VARA) by destroying the paintings when the buildings were demolished to make room for a real estate development. The court agreed with the findings of an advisory jury, which, after a three-week trial, found that the building owners willfully violated the artists’ VARA rights with respect to 36 of 49 paintings at issue. The court further found that liability and willfulness should attach to an additional nine works. Given the "abject nature" of the willful conduct in this case, the court awarded the maximum statutory damages under VARA for each of the 45 works of art wrongfully and willfully destroyed (Cohen v. G&M Realty L.P., February 12, 2018, Block, F.).

"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 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 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 court converted it to an advisory jury. The 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.

VARA protection for temporary works. The defendants argued that the plaintiffs knew that someday the buildings would be torn down and that, in any event, aerosol art was by its nature ephemeral. Therefore, they contended, VARA should not give the plaintiffs protection for their temporary works. Although VARA did not directly address whether it protected temporary works, in the court’s view, it was clear that such works were protected in the context of artworks on buildings. Section 113(d)(1) of the Copyright Act specified that an unremovable work incorporated in a building was protected by VARA unless the artist waived his or her rights in a writing signed by both the artist and the building owner. In addition, Section 113(d)(2)—which specified that artists were entitled to 90 days’ written notice to allow them to salvage their removable works—contemplated that such works may be temporarily on the side of a building. Therefore, the court concluded that VARA did not exclude temporary works from protection. Also supporting this conclusion was 17 U.S.C. § 106A(c)(1), which provided that modifications that were "the result of the passage of time or the inherent nature of the materials" were not violations of VARA. Thus, the court reasoned, Congress chose to exclude protection for the passage of time and natural deterioration but not for other types of temporary works. The court also noted that federal appellate courts in other circuits had given VARA protection to unfinished works, where were inherently in a temporary state.

Works of recognized stature. Case law in other circuits had set a rule that establishing the requisite stature for VARA protection required a two-tiered showing: (1) that the work in question had "stature"—that is, it was viewed as meritorious, and (2) that this stature was "recognized" by art experts, other members of the artistic community, or by some cross-section of society. The court stated that this test could be more rigorous than what was actually required by the statute, but it did not need to "dwell on the nuances of the appropriate evidentiary standard since the plaintiffs adduced such a plethora of exhibits and credible testimony, including the testimony of a highly regarded expert, that even under the most restrictive of evidentiary standards almost all of the plaintiffs’ works easily qualify as works of recognized stature."

The court found that 37 works on long-standing walls all achieved recognized stature by virtue of their selection by Cohen for these highly coveted spaces; this conclusion was supported by expert testimony. Ten works on the walls were of recent origin; two were not on walls at all. For these 12 works, the court adopted in whole the jurors’ findings that eight works had achieved recognized stature, and four had not. The eight works protected works had garnered third-party attention, social media presence, and promises from Cohen that they would be long-standing. The others had either not attracted significant third-party attention or social media buzz during their short life spans, or they were not on the walls of 5Pointz buildings, but on other nearby structures. In sum, the court found that 45 of the 49 works had achieved recognized stature for purposes of VARA.

Mutilation and prejudice to honor or reputation. Even if a work is not of "recognized stature," VARA also protected works from "intentional distortion, mutilation, or other modification … [that] would be prejudicial to [the artist’s] honor or reputation." Of the four works not having "recognized stature," the court noted that two had been fully destroyed, meaning that they had not been "distorted, mutilated, or otherwise modified." One work had been partially whitewashed to the extent that it was not recognizable as Cohen’s work; therefore, the whitewashing could not damage Cohen’s reputation. The fourth was almost entirely covered in black paint, such that the artist’s reputation or honor could not have been prejudiced.

Actual damages. The plaintiffs’ expert witness testified that the works were worth from $50,000 to $80,000 per artwork. This figure was arrived at via a complicated formula beginning with the sale price of a piece by famed street artist Banksy and awarded each work a percentage of that value based on the artist’s notoriety, the merit of the work, and other factors. The court deemed this methodology flawed, largely because it failed to account for the removal costs of the works, which the plaintiffs’ own removal expert testified could run in the hundreds of thousands of dollars. Moreover, there was no evidence that any of the 5Pointz artists had ever achieved a fraction of Banksy’s sales history. Nor did the expert’s method consider the unique problems inherent in selling artwork that was the size of the wall of a building. The court found the defendants’ appraisal expert credible; that expert testified that the works did not have a provable market value. Therefore, the court did not award actual damages.

Statutory damages. The court had, however, wide discretion in setting the amount of statutory damages. The Copyright Act provided that the factfinder may award between $750 and $30,000 per work, unless the infringement was committed willfully; if so, the award may be as high as $150,000 per work. The court agreed with the jury’s finding that Wolkoff acted willfully with respect to each work destroyed. Wolkoff admitted that he knew the artists were attempting to protect their rights under VARA when he destroyed the works. Wolkoff could have given the plaintiffs 90 days’ notice to allow them the opportunity to salvage their works, but he did not. 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 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."

Wolkoff’s state of mind, his realization of significant profits by violating VARA, the damage to the careers of the artists, and the factor of deterrence all weighed in favor of granting the maximum award of statutory damages. Therefore, the court awarded $150,000 for each of the 45 works, for a total statutory damages award of $6.75 million.

The court took the opportunity to call Wolkoff out for his "insolence," without which the damages would not have been assessed. "If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully," the court said. "Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order."

The case is No. 13-CV-05612(FB)(RLM) and No. 15-CV-3230(FB)(RLM).

Attorneys: Eric Baum (Simon Eisenberg & Baum LLP) for Jonathan Cohen. David G. Ebert (Ingram Yuzek Gainen Carroll & Bertolotti, LLP) for G&M Realty LP.

Companies: G&M Realty LP

MainStory: TopStory Copyright NewYorkNews

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