5 Pointz Graffiti Artists Win Jury Verdict—but Judge’s Final Ruling Awaits

A Brooklyn jury found in favor of a group of graffiti artists Tuesday following a closely watched trial that hinged on a rarely tested provision of federal law. But the verdict against defendant Gerald “Jerry” Wolkoff, the developer who tore down graffiti mecca 5 Pointz, which housed the artists’ work, will not be the final word in the case due to an agreement reached between the parties prior to the start of jury deliberations. Instead, the judge presiding over the case will ultimately decide the lawsuit’s outcome.

The jury’s verdict comes after nearly four years of discord between the so-called “aerosol artists” and Wolkoff. For decades, the 5 Pointz warehouse served as an ever-evolving canvas for graffiti artists who adorned the structure with colorful images. Working with Wolkoff’s permission, they turned the site into a destination where world famous artists traveled to add their mark.

But November 2013, Wolkoff whitewashed the entire building overnight and without warning, before any of the artists were able to remove or preserve their work. Wolkoff sold the plot of land and, like many defunct outer-borough warehouses inhabited by artists, it has since become a construction site of luxury condominiums. Over 350 works were whitewashed under Wolkoff’s supervision, including those attributed to the 24 plaintiffs in this case who subsequently sued the developer.

The artists’ claim hinges on whether Wolkoff committed violations of the 1990 Visual Artist’s Rights Act (or “VARA”). VARA grants visual artists limited rights over work they created but do not own, and can entitle them to monetary damages if their works of a “recognized stature” are destroyed or if mutilation to works is prejudicial to the artist’s reputation.

The jury in the case was asked to decide:

1) Whether Wolkoff distorted, mutilated, or otherwise modified the works in a way that was prejudicial to the artist’s honor or reputation; and

2) Whether Wolkoff destroyed a work of art that had obtained “recognized stature.”

The jury of six overwhelmingly sided with the artists, granting varying damages to each artist in connection with the violations.

But because of the agreement reached prior to deliberation, the jury’s opinion is advisory, not binding.  Lawyers for each side will have 30 days to submit final argumentative briefs that Judge Frederic Block will consider in conjunction with the jury’s verdict.

The jury’s decision comes after hearing over two weeks of testimony. On the plaintiffs’ side, 21 artists and expert witnesses argued that the works at 5 Pointz are of a  “recognized stature” and that the artists had reputations among the art community—two bars that must be met for an artwork to invoke some of the protections afforded under VARA.

There is little caselaw on the VARA, especially in the context of graffiti art. The 5 Pointz case presented the possibility of a groundbreaking ruling that would offer clarity around the applicability of the statute, paving the way for more aggrieved artists to seek justice if their works are destroyed. Although there is no dispute as to whether graffiti can be covered by the statute in the same way as fine art (it can), a verdict for the plaintiffs in this case would mark the first instance in which graffiti is deemed to be of a recognized stature and afforded protection under VARA.

Each side will now have one last chance to submit final arguments on the case to the judge for consideration alongside the jury’s opinion. Even when they are advisory, jury verdicts are generally reviewed with deference. The defendants have remained steadfast in their conviction that certain artists failed to prove that they were given permission to paint the works on Wolkoff’s property at all. Additionally, they dispute whether artists aside from Jonathan Cohen, one of the plaintiffs in the case, have standing at all to bring these claims. An attorney for the defendants declined to comment.

While the jury’s verdict puts the artists in a good position, had they not agreed to give the judge the final word, the suit would have been closed in their favor Tuesday. When reached Wednesday, Eric Baum, the attorney for the artists, told Artsy that the case presented a “complicated set of facts and law and [he] thought there would be a benefit in having members of the community weigh in on the issues, but ultimately having the judge make a final decision on the claims of the case.”

Relying on the judge’s opinion will certainly ensure the most thorough legal process. And for avid court watchers, many of whom have waited with anticipation for caselaw on VARA, the judge’s opinion will also provide a valuable precedent and indeed shape VARA claims in the future.