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2nd Circuit Upholds NYC Graffiti Landmark as Protected Art

NEW YORK, NY - AUGUST 09:  A man walks past a mural painted on the "5 Pointz" building on August 9, 2013 in the Long Island City neighborhood of the Queens borough of New York City. 5 Pointz is a series of properties that graffiti artists use as an outdoor art exhibit space - it is considered the Mecca of the graffiti world. The space has been used as a space for graffiti artists since the early 1990s, though in 2011, Jerry Wolkoff, the owner of the property, announced he planned to demolish the building to build high-rise residential buildings. The 5 Pointz graffiti community has since been in a battle to keep the space as is; they are currently petitioning the government to consider the space a protected cultural landmark.  (Photo by Andrew Burton/Getty Images)
By Joseph Fawbush, Esq. on February 21, 2020 3:10 PM

Graffiti from New York City artist Jonathan Cohen and others were protected works under federal law, the U.S. Second Circuit Court of Appeals has held. In a unanimous decision, the federal appellate court awarded Cohen and others $6.75 million in damages after the building owner whitewashed the walls of his Queens, New York, warehouse in preparation for their renovation into luxury apartments. The court found the building owner willfully destroyed the graffiti without giving a chance for the artists to recover or commemorate their work.

5 Pointz, a Graffiti Art NYC Landmark

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Gerald Wolkoff, the owner of the warehouse, worked with a graffiti artist Jonathan Cohen (Merez One) to oversee graffiti art done on the warehouse. The building complex became known as "5 Pointz." While some art was permanent, other spaces in the buildings housed temporary artwork that other graffiti artists could paint over, provided they obtained a permit from Cohen to do so. The buildings held over 10,000 works of art over the course of their lifespan. The site gained some prominence, appearing as a backdrop in television, movies, and music videos. Located right next to the subway and the Queens Midtown tunnel, millions of commuters saw the artwork every day.

In 2013, Wolkoff sought to convert the warehouses into condominiums. The graffiti artists sued to prevent the destruction of the building under the Visual Artists Rights Act. VARA gives artists moral rights to claim or disclaim ownership in artwork and to protect their own art from modification or destruction by the owner. However, to be protected under VARA, the work needs to be of "recognized stature."

Wolkoff whitewashed the art during litigation. The district court later found that this destruction violated VARA and awarded the maximum amount of statutory damages to the artists.

Demonstrating Recognized Stature

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The Second Circuit upheld the district court, holding that the expert testimony was enough to merit protection under VARA.

Wolkoff argued that since much of the artwork was temporary and that the artists knew the building could be torn down, then it did not merit protection under VARA. The Second Circuit found these arguments unpersuasive, though, noting that Wolkoff could have been free from liability if he had gotten written acknowledgment that the art could be destroyed from the start. Further, just because art is temporary doesn't necessarily mean it is not a work of recognized stature.

Maximum Statutory Damages

While the artists sought actual damages, the district court found any valuation of the artwork too uncertain. However, the district court did award the maximum amount of statutory damages under VARA, finding that Wolkoff acted in retaliation. The Second Circuit found no error in the district court's reasoning, writing that the damages could "encourage other building owners to negotiate in good faith with artists whose works are incorporated into structures."

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