5Pointz complex in Long Island City, Queens, was a frequent site of photo shoots and music videos as its walls were adorned with visual works of art since the 1990s—back when the owner of the building agreed to allow graffiti artists work on the walls of the building. 5Pointz became not only a hotspot and an art exhibit for tourists, it “helped transform the neighborhood into a thriving residential enclave.
In 2013, however, developer, Gerald Wolkoff, wanted to tear down the graffiti mecca and build luxury rentals. “The ‘aerosol’ artists . . . led by Jonathan Cohen . . . sued to prevent the destruction of their work.”
The judge denied the graffiti artists’ injunction, and Wolkoff proceeded, in 2014, to whitewash the walls and tear down the buildings to build luxury apartments, but there was still an opportunity for artists to pursue monetary damages.
After the demolition, artists filed suit against Wolkoff alleging he violated the Visual Artists Rights Act (VARA), which in turn entitles them to monetary damages. VARA was passed in 1990 to provide “moral rights to artists behind qualifying works of visual art. Namely, it grants the rights to attribution and integrity. The right to integrity . . . provides artists with the ability to ‘prevent any destruction of a work of recognized stature’ even if owned by someone else . . ..”
To determine whether a work is “recognized stature” for purposes of VARA, a court “must consider both whether the art ‘was viewed as meritorious,” and also whether art critics, experts, and other members of the art community considered that the art was ‘recognized.’” However, experts suggest the determination is vague and broadly interpreted.
In applying VARA, the court held that the statute provides monetary recourse for the destruction of the artists’ visual works. The court, however, is unable to grant indefinite preservation of visual works protected under VARA.
In the 100-page decision, Judge Block awarded $150,000 for each of the 45 works, totaling a $6.75 million award. Judge Block wrote “If not for Wolkoff’s insolence, these 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. [. . .] Since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time. It would have been a wonderful tribute for the artists that they richly deserved.”
Despite the “gaping hole in legislative protection of artists’ rights”—specifically issues with monetizing destructed visual works and the inability to consider a work’s ineffable cultural contribution, this landmark case is a victory to artists around the world.
“The court’s decision is a victory not only for the artists in this case, but for artists all around the country . . .. Aerosol art has been recognized as a fine art. The clear message is that art protected by federal law must be cherished and not destroyed. Anyone who violates the law will be held accountable and punished for the destruction,” 5Pointz attorney, Eric Baum.