Gerald Wolkoff, a building owner in the New York borough of Queens, in search of what he might have thought was his picture-perfect ending to an escalating dispute with neighborhood artists,  did more than rub out what some might consider walls covered with graffiti. He also rubbed the wrong way a federal judge, federal jurors, and a corps of “aerosol artists,” destroying dozens of artistic creations with legal protections, described in a court document as the nation’s “largest collection of exterior aerosol art.”

The landlord’s aggressive action against the wall mural mecca known as 5Pointz will come at a hefty cost for Wolkoff and his various real estate enterprises: Senior U.S. District Judge Frederic Block has awarded statutory damages of $6.7 million to 21 graffiti artists who sued Wolkoff and his companies.

The the judge and jurors found that the defendant willfully violated the artists rights to 45 works of art by their wrongful, middle-of-the-night whitewashing.

They were painted over even as 21 artists collectively had sued Wolkoff and his companies, asking a court to grant them a preliminary order to prevent the demolition of one the warehouse buildings emblazoned with their art. But before the court could rule on a possible TRO, Wolkoff ordered crews to paint over the works. This task was done in inconsistent fashion but damaged the artwork, so that none of the pieces could be saved.

The court conceded that aerosol or graffiti art, “given its general ephemeral nature,” might be tough to protect. But the judge allowed plaintiff artists to pursue claims against Wolkoff for damaging their work. 

Their suit was pursued under the distinctive area of copyright law covered by VARA or the 1990 Visual Rights Act.

1990 Visual Artists Rights Act (VARA)

VARA expanded copyright law to protect authors of visual art, if  they were “one of recognized stature,” and if this stature is “recognized” by some artistic community. As the act, 17 U.S. 106A(3)(a), states, the author of a visual art work shall have the right :

  1. To prevent the intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
  2. To prevent any any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

To establish their artwork as one of recognized stature, each artist must present folios filled with their achievements and recognition of their “technical and artistic mastery and vision.”

Besides their own portfolios, artists and experts from various backgrounds from the “most prestigious art schools to the self-taught” around the world supported the 5Pointz plaintiffs’ claims, testifying to the importance of the works and the harms due to their loss.

The boldly emblazoned spaces had attracted notice in the poor and run-down area. Wolkoff’s buildings attracted not only artists of note in this visual specialty, the expansive walls of art had become a prominent space pulling in the eyes of commuters and foot traffic. Jonathan Cohen, an accomplished aerosol artist, was designated as the area’s curator, establishing a system of rules for both the creation and curation of the art.

Failing to see eye-to-eye with creatives

But Wolkoff didn’t see eye to eye with this burgeoning creative adventure, arguing that the outdoor aerosol artists had to know that one day the buildings they worked on would be torn down. His lawyers also argued that VARA should not apply to temporary works. 

The court rejected this claim citing Mass. Museum of Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38, 65 (1st Cir. 2010).  In that case, the appellate judges held that VARA “protects the interim, unfinished work even though it is only temporarily in that form.”

Ultimately, the court in Brooklyn found that 45 of the 49 works at 5Pointz were protected by VARA.  

Dean Nicyper,  an art law specialist, has said this decision is the first to find that graffiti and graffiti artists were protected by VARA.  The intentional whitewashing of these painting despite a pending Court opinion 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.” The willful mutilation of the artwork heavily factored into the high statutory damage award $6.7 million that the artists received.

The 5Pointz case has drawn considerable interest and criticism, with legal minds seeing unresolved questions in its outcome.

Wolkoff has decried the artists’ award from the court and has said he will appeal the case.

Photo credit: P.Lindgren, Creative Commons