Art Law Report

A Signpost for Artists’ Rights or the Beginning of the End? 5Pointz Damages Award May be A Fork in the Road

Posted by Nicholas O'Donnell on March 19, 2018 at 8:50 AM

Last week Apollo magazine published my comments about the recent 5Pointz decision.  The article can be found here, and the text is reprinted below:

The recent award of $6.7 million against the developer who whitewashed 5Pointz, the building in Queens that had become a centre for street artists, has lawyers, artists, and property owners grappling with what it means. American law does not afford artists moral rights to the extent that many other countries do, but one law does so on a limited basis – the Visual Artists Rights Act of 1990 (VARA). The 5Pointz verdict is significant as a substantial award of damages under VARA, a rarity – but it may have the unintended consequence of making fewer venues such as 5Pointz available to street artists in the future.

5Pointz was for years known as the ‘United Nations of graffiti’, due to the ability of artists to spray-paint the buildings there without running afoul of the law. In actuality it was an old factory complex in Long Island City, Queens. Property owners Jerry Wolkoff and his son David had allowed the unused building to be painted while the Wolkoffs considered development plans. When they announced in 2013 their intention to raze the buildings in preparation for redevelopment, a group of artists sought an injunction in US District Court to prevent the demolition. Plaintiffs invoked VARA, asking the court to find the paintings to be of ‘recognised stature’ such that they could prevent its destruction. The court’s opinion denying the injunction expressed sympathy, but declined to prevent the developers from proceeding with their plans because at that stage of the case the court was not convinced that the street art constituted a ‘work of art’ eligible for VARA protection. In response, the owners whitewashed the buildings, obscuring the street art forever.

Although the artists failed to get a preliminary injunction at the start of the case, the matter proceeded to a trial.  There, the results were quite different. The case went to a jury for recommendation, which found that the artists should prevail. The judge then issued a scathing denunciation of the property owners, holding that the artists were indeed entitled to VARA protection and that 45 of the 49 works were of recognised stature. The plaintiffs were awarded $6.7 million, $150,000 for each work.

Of particular significance in this decision was the court’s consideration of the recognised stature standard, which it deemed should be ruled by ‘common sense’. Meanwhile, in the absence of persuasive evidence about the market value of the art, the presiding judge had to articulate a basis to calculate the money damages each artist should receive since VARA itself does not specify how to do so. To do so, the court looked to the statutory damages from elsewhere in the Copyright Act, where VARA is codified, which enumerate $150,000 as the prescribed award for wilful copyright infringement. (In its opinion, the court had crucially found the defendants’ decision to whitewash the building as ‘wilful’, ‘an act of pure pique and revenge’.) Multiplied by 45 works, this sum resulted in the total award.

The outcome is important first and foremost because it held that street art was eligible for VARA protection, and provides meaningful guidance about what an artist must show to demonstrate ‘recognised stature’, in order to prevent or win damages for destruction of their art. VARA rights are seldom interpreted and the case is a welcome exception to courts’ reluctance to reach VARA questions. By applying a common-sense approach to allowing evidence about the stature of the art, and not requiring a special standard of expert testimony, the 5Pointz court’s approach – let the artist make the case and see where it goes – sets a precedent that could lead to more cases brought by artists reaching a jury.

This case does not, however, answer the still vexing question of how broad a scope of street art might be protectable. This artwork had been installed by permission, but much street art is not. Observers still disagree on whether lawful installation is a prerequisite for VARA rights. More than this, the case may have the effect of discouraging property owners from allowing the kind of permission that the Wolkoffs did, for fear that it will bind their hands later. And if they do, they may insist on a pre-emptive waiver of VARA rights before granting permission. What is certain is that the 5Pointz verdict, reached under a law that US courts have long struggled to apply, will have far-reaching effects for artists seeking to assert the moral rights of their works.

Topics: Graffiti Art, Visual Artists Rights Act of 1990, VARA, Jerry Wolkoff, Copyright, 5Pointz, Street Art

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