5Pointz Graffiti Artists Get the Go-Ahead for Trial Over Destroyed Art Works

After filing suit in 2013 in connection with the destruction of a New York graffiti landmark, a group of 17 graffiti artists, who are responsible for the graffiti that covered 5Pointz, a now-demolished complex of brick warehouses in Long Island City, New York, has been handed a victory. The street artists filed suit in October 2013 in the U.S. District Court for the Eastern District of New York against the longtime owner of the warehouses after he got approval from the New York City Council to demolish the 200,000-square-foot factory building in order to build housing towers in its place.

According to the complaint, the proposed demolition stood to violate the artists’ rights under the Visual Artist Rights Act of 1990 (“VARA”) (legislation that gives certain copyright owners the right to prevent the destruction of a work of art if it is of "recognized stature”), as well as their contractual rights with the defendant, and the easement rights of the lead plaintiff, Jonathan Cohen, who became the curator and manager of the buildings as collective canvases in 2002. The suit further alleged that the artists were, in fact, granted permission to tag the walls from Gerald Wolkoff, owner of the warehouses, which were demolished in 2014.

While U.S. District Judge Frederic Block previously recognized the significance of the artwork (which according to 5Pointz's complaint "is listed in every major guidebook covering New York City, and is included in over 100 international travel guides, as well"), he ultimately held that Wolkoff had the right to develop the property as he chooses and allowed for the plans for demolition to move forward.

In a newer lawsuit, the same group of artists alleged that Wolkoff ran afoul of VARA by whitewashing their artwork prior to the destruction of the warehouses. According to the suit, which was filed in the U.S. District Court for the Eastern District of New York in June 2015, they were not given any warning from Wolkoff that the art would be painted over and as a result, did not have the opportunity to pull down or preserve their artwork.

The graffiti at issue, according to the suit, amounts to artwork of “recognized stature,” thereby, enabling the artists to rely on VARA for protection and recourse. They are claiming an array of monetary damages.

As of Friday, Judge Block has given the artists’ suit the go-ahead, ruling that the case can proceed to trial. Per Law360, “Jurors will have to decide whether the street art at the Queens site were works of ‘recognized stature’ that are protected by VARA.”