The Case Ahead
This will be a critical issue in the 5 Pointz case. As the lawsuit proceeds to trial, each side will present art experts to voice their opinion on whether or not the work is important and well recognized. It will be up to the jury, based on the facts presented, to decide.
There is little doubt that Cohen and the other artists will be able to make a strong showing. 5 Pointz, both in life and in death, has been an institution for graffiti artists, widely acclaimed and discussed in both the local and international press. And a Brooklyn jury is likely to be sympathetic to the artists amid the constant churn of gentrifying landscapes.
The legal battle and eventual destruction of 5 Pointz also significantly raised its profile, which could have a positive impact on the damages, as the “stature” of the works is now exceptionally well-documented.
One potentially derailing factor, though, is that the court is of the view that each particular work should be considered separately. The judge has asked the artists to present a “final list” of all the works, so he may determine whether the claims will be managed by a single jury or multiple juries.
As moral rights in this country have evolved over the years, in some ways they have diverged from their original purpose. The emphasis on allowing artists to pursue monetary damages rather than a more holistic approach which protects the art for the public demonstrates the economic lens through which the United States views artists’ rights. Such a focus flies directly in the face of the purpose of moral rights. Still, one can understand the judicial need to assign financial value and rely on concrete evidence in these types of cases.
Regardless of how the 5 Pointz lawsuit plays out, it reflects a gaping hole in legislative protection of artists’ rights. In particular, putting a fixed economic value on a work’s destruction limits its value to the financial, failing to consider the work’s ineffable cultural contribution to the public writ large.