Photo by Pelle Sten, via Flickr.
On Friday, a group of graffiti artists won a significant legal victory against the real estate developers who demolished the graffiti haven known as “5 Pointz” in 2014. In an unexpected turn, a Brooklyn judge ruled against the developers, who had made a final request to dismiss the case before trial.
The judge’s ruling breathes new life into the three-and-a-half-year-long lawsuit, originally stymied by earlier decisions which allowed the property owners to destroy the graffiti and redevelop the site. Today, luxury rentals now reside on the Queens lot where the warehouse once sat.
In their pending suit, the graffiti artists argue that the Visual Artists Rights Act (VARA)—which grants visual artists limited rights over work they created but do not own—entitles them to monetary damages for the destruction of their art.
The developers, meanwhile, asserted that such rights are narrow and inapplicable given that, while the artists are well-known, the works are not. As such, they aren’t covered by VARA. But in his ruling Friday, judge Frederic Block sided with the artists, stating that the evidence provided by both sides was sufficient to merit putting their VARA claims in front of a jury.
Demolishing 5 Pointz
The “aerosol” artists—as the court refers to them—are led by Jonathan Cohen, the most recent curator of the former graffiti mecca 5 Pointz. In the 1990s, while the building was mainly comprised of artist studios, the owner was asked to allow graffiti artists to work on the walls of the building. He agreed, and over time, the warehouse evolved into a living exhibition for local and international graffiti artists and fans alike. In the early 2000s, when Cohen assumed curative control, the building came to be known as 5 Pointz, named after the five boroughs of New York City.
Trouble began in 2013, when, after decades of this mutually beneficial arrangement, the owners voiced their intention to raze the warehouse and build a new housing development which would offer luxury rentals and a small selection of affordable units. The same year, Cohen and the others sued to prevent the destruction of their works which, at that time, still adorned the walls of the warehouse.
After initially delaying the development, the judge eventually denied the artists’ requests for permanent action in November 2013—though he left the door open for the artists to pursue monetary damages. The developers proceeded to whitewash the building overnight, allowing it to sit for months before it was eventually razed. This quick, perhaps unnecessary, washing of the graffiti served as a gut-punch to the artists who had pursued legal action to save the walls they saw as an extension of themselves.
VARA and Its Limits
The 5 Pointz artists’s case against the developers stems from the Visual Artists Rights Act—or VARA for short. Passed in 1990, the law provides what are known as moral rights to artists behind qualifying works of visual art. Namely, it grants the rights to attribution and integrity. The right to integrity, as invoked in the 5 Pointz lawsuit, provides artists with the ability to “to prevent any destruction of a work of recognized stature” even if that work exists on property owned by someone else—in this case, the building’s developers.
But VARA provides narrow protection with limited application compared to European laws dealing with similar issues. VARA’s right to integrity is limited in applicability to original copies of qualified works of visual art (thereby excluding music and other non-visual art). Additionally, the rights last only for the life of the artist, and may also be waived by the artist.
A significant limitation of VARA, and one which lies at the core of this case, is that a work must be of a “recognized stature” in order to prevent its destruction under the statute. Additionally, though the text of the statute states the ability to “prevent destruction,” courts are often limited in their abilities to actually follow through with this remedy, since they are required to weigh competing interests, including that of the property owner.
VARA and 5 Pointz
In refusing to prohibit the destruction of the artwork of 5 Pointz in 2013, the judge employed a narrow reading of VARA. That is, he ruled the statute provides monetary recourse for the destruction of visual works of “recognized stature,” but not the ability to indefinitely preserve the works. Since moving the art in this case was not an option, the only way to preserve it would have been to preserve the entire building, perhaps as a tourist attraction or cultural landmark. Judge Block noted that such remedies were wholly outside of those that the court had authority to grant under the statute.
Instead, he considered that the a monetary reward would make the artists whole. While this hollow reading of the statute was disappointing, it allowed for artists to seek monetary damages remains after destruction—which they did. Though developers had sought to prevent even an economic reward, Judge Block’s ruling Friday allows the artists claim to monetary damages under VARA to proceed.
One of the earliest cases to consider this issue and provide an important precedent coincidentally also took place in Queens. In Carter v. Helmsley Spear, Inc., a developer removed a sculpture in a building he was renovating. The artist sued, relying on VARA for monetary damages. The court held that whether a work was of “recognized stature” under VARA 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.”
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.