Ninety days versus $6.75 million. That’s what the 5Pointz case currently on appeal in the US before the Second Circuit Court of Appeals boils down to. Twenty-one artists should have been given a ninety-day notice to remove their art from the façade of a real estate developer’s property before he whitewashed the works, according to the first instance judge, the Honorable Frederic Block of the Eastern District of New York. The developer failed to give the artists that window of opportunity to salvage their work, and now he must pay a multi-million dollar statutory damages award. Or does he? The Second Circuit will soon answer that question.

(Detail) Artwork at 5Pointz before it was whitewashed.

The Creation of New York’s International Mecca for Street Art

In the 1890s, the complex that would become known as 5Pointz was erected as a modest group of buildings situated in Long Island City, Queens to house a water meter factory. By the 1990s, the complex was under the long-time ownership of developer Gerald Wolkoff and had become dubbed the Phun Phactory due to the mix of graffiti that adorned its exterior walls, including offensive and gang-related markings.

In 2002, Wolkoff orally agreed to allow artist Jonathan Cohen (also known as Meres One) to curate the exterior of the complex. Cohen oversaw which artists would be allowed to feature work and when that work would be painted over to make room for new work. No waiver was required before Cohen directed a piece to be covered. Artists understood their street art was temporary; some pieces were in place as little as twelve hours while others remained as long as two years.

An international mix of artists, including those from Japan, Brazil, Switzerland and the Netherlands, vied for a place on the walls of 5Pointz. The space was featured in major publications like the New York Times, the International Herald Tribune and The Christian Science Monitor. 5Pointz was birthed as a world-renowned artists’ mecca – under Wolkoff’s consent.

Then, in 2013, the Wolkoffs made it known that they intended to immediately develop the property. In an effort to protect 5Pointz from destruction, the artists submitted a failed application to the New York City Landmarks Preservation Commission, requesting that 5Pointz be preserved as a culturally significant site. At the same time, the New York City Planning Commission unanimously approved plans for condominiums to replace 5Pointz.

Artists Were Not Given Notice As Required Under VARA

In a continued effort to stop the demolition of 5Pointz, the artists filed a motion for preliminary injunction against Wolkoff and four of his real estate entities. This motion was made under the Visual Artists Rights Act, 17 U.S.C. Section 106A (“VARA”), United States legislation which provides artists with certain “moral rights”. One such right under VARA is to prevent the intentional distortion, mutilation, or other modification of artists’ works if those changes would harm their honor or reputation, and to prevent the destruction of works of “recognized stature”.

On November 12, 2013, Judge Block denied the injunction and stated that a written opinion would follow. Seven days later, Wolkoff caused all the artwork at 5Pointz to be whitewashed overnight. No warning was given to allow the artists time to remove their work.

The following day, Judge Block’s promised decision was issued. In it, the Court warned Wolkoff that he would be “exposed to potentially significant monetary damages if it is ultimately determined after trial that the plaintiffs’ works were of ‘recognized stature’”.

In the fall of 2017, a three-week trial was held before an advisory jury that found Wolkoff had violated the artists’ VARA rights regarding thirty-six of the forty-nine destroyed works. In his 100-page decision that followed in February 2018, Judge Block generally agreed with the jury’s recommendation, but went further by adding nine other works to that list.

Destroyed Works Held To Be of “Recognized Stature” Under VARA

Without a definition for or an exact standard to achieve “recognized stature”, the lower court applied a “common sense” approach tothe “plethora of exhibits and credible testimony” from expert and fact witnesses that supported the artists’ claims. One such witness was a Google Arts and Culture curator who testified why Google believed 5Pointz was a “culturally significant site” worthy of an exhibit on their platform.

Judge Block found the artists’ portfolios revealed “impressive” accolades and renown for their work at 5Pointz:

Folios for each [artist] were admitted into evidence collectively containing their professional achievements and recognition in the form of an impressive array of fellowships, residences, public and private commissions, teaching positions, media coverage, and social media presence.

The Folios covered the highlights of their careers, as well as evidence of the placement of their works at 5Pointz in films, television, newspaper articles, blogs, and online videos, in addition to social media buzz.

According to Judge Block, the portfolios revealed “striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5Pointz”.

Maximum Damages Under VARA Awarded for Willful Destruction of the Works

After deciding the works were of recognized stature, it was necessary to determine whether destruction of those works was willful in order to determine the appropriate damages. Judge Block’s detailed decision notes Wolkoff was “singularly unrepentant” about ordering 5Pointz to be whitewashed. While he refused to provide any “coherent testimony” until threatened with contempt, the testimony Wolkoff did give is damningly clear: “I decided—I alone decided to hire people to whitewash [5Pointz] in one shot instead of waiting for three months.’” There appears to be little doubt of Wolkoff’s intent – to ignore VARA’s 90-day notice provision. With this evidence in hand, Judge Block ordered the maximum penalty allowed under VARA for wilful violations – $150,000 for each destroyed piece.

“Temporary” Nature of Works Does Not Bar Protection Under VARA

The defense has attempted to side-step VARA’s application by focusing on the temporary nature of the destroyed works and the 5Pointz policy to periodically whitewash work without obtaining waivers. This was given no credence by the lower court: “VARA draws no distinction between temporary and nontemporary works on the side of a building, particularly when all that makes a work temporary is the building owner’s expressed intention to remove or destroy it”. During oral argument before the Second Circuit, the appellate court appeared to agree that VARA does cover temporary works, citing Christo and Jeanne Claude’s Central Park installation, The Gates, which would be unprotected under VARA otherwise.

Second Circuit’s Pending Decision

Having heard oral argument in August 2019, the Second Circuit is now set to decide whether there was any “clear error” in the lower court’s determination that the majority of the works at issue were of “recognized stature” and its resulting $6.75 million damages award against the defendants for destruction of those works. Significant deference is given to the lower court’s findings under the “clear error” standard of review. Reversal is only likely if the Second Circuit finds noticeable error is plainly seen. Whatever the outcome, the Appellate Court’s decision promises to fashion the future dealings of artists and property owners in a profound way.

Image credit: Photo by Aaron Harewood (5pointz graffiti), CC BY 2.0 via Wikimedia Commons