Photo by Matthew Berggren, via Flickr.
A group of 21 street artists emerged victorious in their suit against the developer who whitewashed their work from the historic Queens, New York graffiti mecca known as 5Pointz. A federal judge handed the group a $6.75 million judgment on Monday, ruling the developer’s destruction of the street art violated the Visual Artists Rights Act (VARA), which provides certain artists rights over work even if it is not their property.
The ruling provides closure for one of the most-watched legal battles in the art world. But the impact of the suit may well echo far into the future. The judgement marks the first time graffiti artists have triumphed in a VARA lawsuit, and the 50 page opinion penned by Judge Frederic Block gives other graffiti artists hope that they could find success bringing cases under the statute—though they may not be awarded such high damages.
VARA, a rarely invoked United States statute, allows certain visual artists to sue for infringement of what are known as “moral rights.” Those moral rights include the right to the attribution and integrity of their artwork. The law also protects against the destruction of “works of recognized stature.” The artist maintains these rights even if their work is sold or, as in the 5Pointz case, even if the work is painted on someone else’s building.
For many years, there was no acrimony between Jerry Wolkoff, the developer who owned the 5Pointz property, and the graffiti artists who he allowed to cover his warehouse. The warehouse was curated and organized under the supervision of Jonathan Cohen, who subsequently became one of the plaintiffs. Over time, the building grew into something of a mecca for graffiti artists, many of whom traveled from overseas for the opportunity paint on its walls.
But one night in November 2013, Wolkoff, who had announced that the building would be demolished to make way for luxury apartments, whitewashed the building without specific warning, destroying the graffiti artworks.
A team of 21 graffiti artists—dubbed “aerosol artists” in court documents—sued. They asserted that Wolkoff violated their VARA rights by whitewashing the works that adorned the warehouse walls. The artists charged that the destroyed artworks met VARA’s “recognized stature” requirement in spite of the fact that the artists did not own the 5Pointz property.
The case was initially tried in front of a jury, which overwhelmingly sided with the artists in November of 2017. But shortly before the jury issued their verdict, both sides agreed that the jury’s decision would be advisory and that the judge would have the final say.
Ultimately, that benefited the plaintiffs. The jury ultimately found that Wolkoff had acted willfully and awarded damages for 36 of the 49 individual works that were the subject of the dispute. But Judge Block’s opinion went further than the jury’s decision, holding that Wolkoff was liable for the destruction of 45 of the works. More significantly, the judge found that all of Wolkoff’s violations were willful—so much so that he awarded the maximum amount of damages available under the statute: $150,000 per piece.
The Future Impact
The case is more than a victory for these specific “aerosol artists.” Rather, the judge’s decision widens VARA in favor of artists broadly. For the first time, a court held that VARA’s applicability extended to “temporary works.” Additionally, the court indicated that deeming artwork to be of a “recognized stature”—a requirement for certain VARA protections—may not be as high a bar as earlier cases suggested.
In his opinion, the judge was deferential to the testimony of the artists. The judge cited evidence that the graffiti works had generated “social media buzz” and coverage in articles, blogs, and films as proof that the works attained “recognized stature.” The judge discredited the use by the defendant’s expert witness of an “unduly restrictive interpretation” of the term which would exclude many works from protection.
Wolkoff’s defense focused heavily on the fact that the art was always considered to be “temporary” and that therefore it should be precluded from VARA protection. The court strongly disagreed with that notion, observing in particular that the temporary nature of the works would not have affected the ability to claim copyright protection, so VARA protection should subsist. This express finding—that temporary works are eligible to be protected from their destruction—has serious implications for street art. Specifically, that street art can be eligible for VARA protection if it obtains certain recognition, despite its fleeting and, sometimes illegal, nature.
The judge declined to grant “actual” damages (damages that would directly reflect the cost of the destruction of the works) finding that the cost to remove the works would have likely surpassed their value. Instead, the judge opted for statutory damages—available in cases where the claim has been proven, but actual damages may not be available.
A judge always has discretion over the amount of damages granted. In this case, Judge Block was faced with several subjective evaluations, including the increase in value of the property after the artists’ work was removed and the potential revenue lost by the artists after the platform provided by their “mecca” was destroyed.
Ultimately, the judge granted the maximum amount of statutory damages: $150,000 per piece. In doing so, he pointed repeatedly to Wolkoff’s unrepentance. “If not for [his] insolence, these damages would have not been assessed,” Block wrote. Such a condemnation of the developer’s actions in this instance is damning, but it also indicates that this part of the judgment can be read narrowly, as the damages are completely fact dependent. For example, in a similar case where the developer acted with less “insolence,” the damages may not be as high.
The judge indicated that perhaps the “most important” factor in considering damages was “the deterrent effect on the infringer.” Judge Block noted that in furtherance of VARA’s “preservative goals,” the statutory damages needed to give the statute “teeth.” In his words, it needed to be easy enough for artists to be able to prove that their works have value so that they can allege damages, otherwise, infringers would have no reason not to violate the statute.
The adoption of VARA was required in 1990 by the Berne Convention, an international copyright treaty which, when ratified, provided U.S. intellectual property protection overseas. The United States was one of the last countries to sign onto the convention, in 1988, because it required the country to adopt the moral rights that VARA enacts. Its implementation represented a U.S. accession to a European moral rights structure that in some ways was difficult to reconcile with the underlying aims of the U.S. intellectual property system.
The U.S. system is generally premised on a series of incentives that places artistic creation in the context of the greater good. In other words, copyright provides an incentive for artists to create art and share it for the good of the public. By contrast, the European approach to copyright—and moral rights as well—is premised on the belief that an author has a right to protect their work because it is an extension of their individual person.
In thinking about how to adapt moral rights into a U.S. framework of “incentives,” Judge Block’s emphasis on the “preservation” of important works in the 5Pointz decision is instructive. The preservation for the public element of VARA derives from European moral rights but aligns with the greater good intended through the U.S. intellectual property system. Perhaps after all these years moral rights may cease to be a strange European import, and may actually have a fundamental home in U.S. law.