The 5Pointz case has now been confirmed as viable authority in favor of artists’ rights in the United States. In early October, the U.S. Supreme Court declined to hear the petition for certiorari filed by developers Gerald Wolkoff and several of his real estate entities, thereby eliminating the last appellate hope the developers had to reverse a $6.75 million judgment awarded against them. The judgment was in response to the developers’ violation of the Visual Artists Rights Act of 1990 (“VARA”) by their intentional destruction of certain artists’ murals at 5Pointz, an internationally acclaimed aerosol art complex that was located in New York (right).
Now that 5Pointz has become the seminal case involving VARA, it is important to recall why this case took the course that it did. The key factor involved the developers’ failure to provide the artists with notice as required under VARA prior to destruction of their artworks. Many detractors of the 5Pointz outcome focus on property rights, arguing the developers had the right to do as they wished with their property. This is true – except that, under VARA, the developers should have given a ninety-day notice to the artists before destroying their work, which Wolkoff had allowed on the complex for more than a decade.
In his 2018 decision, U.S. District Judge Frederic Block found the artists’ moral right to prevent destruction of their art had been violated by the developers. It was the developers’ willful removal of the artists’ works without giving the required notice under VARA that qualified the developers for maximum statutory damages – $150,000 for each of forty-five destroyed works of recognized stature.
On appeal before the Second Circuit, the constitutionality of the damages award was called into question by the developers. They also argued that VARA does not adequately define ‘recognized stature’, which is the qualification artworks must meet for their destruction to constitute a moral rights violation under VARA. The Second Circuit found the developers’ arguments unavailing and determined that the trial court had not abused its discretion or made any clearly erroneous findings.
The Second Circuit noted that “Wolkoff, a sophisticated real estate developer, was ‘willing to run the risk of being held liable for substantial statutory damages rather than to jeopardize his multimillion dollar luxury condo project.’”
That risk has now become reality.
Image credit: View of 5Pointz (Image credit: Ezmosis CC BY-SA 3.0 via Wikimedia Commons)