Artists Lose Bid to Keep Graffiti From Being Destroyed

A group of 17 graffiti artists, who are responsible for the graffiti that covers 5Pointz, a complex of brick warehouses in Long Island City, New York, filed a copyright lawsuit in October in the US District Court for the Eastern District of New York against real estate developer G&M Realty LP. The group filed suit the day after the Wolkoff family, the longtime owner of the warehouses, 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 artists, who hail from the U.S., Kazakhstan, Australia, Japan and Brazil, allege that the proposed demolition would violate their rights under the Visual Artist Rights Act of 1990, 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. As indicated above, 5Pointz does not own any of the space on which the graffiti is located. According to 5Pointz's spokesman, Gerald Wolkoff, the owner of the building, gave 5Pointz the wall for free 11 years ago.

As of this week, Judge Frederic Block of the United States District Court  for the Eastern District of New York dissolved the temporary restraining order that he had issued in October, prohibiting the owners of the warehouses from demolishing the structure in preparation to build what will be about 1,000 housing units.

Judge Block addressed 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"). Block also acknowledged the importance of preserving the art, but ultimately held that Wolkoff has the right to develop the property as he chooses.

So, what is actually going on here? Well, a few things. The 5Pointz artists were arguing that destruction of the building and thus, their work, is a violation of their moral rights in connection with the copyright that exists in the copyright-protected graffiti. A bit of background: in 1990, the Visual Artists Rights Act (VARA) was passed, giving some copyright owners additional rights in their works. Included in these new rights, which only apply to works of visual art (think: sculptures and select paintings, drawings, prints, and photographs), is the right to prevent the destruction of a work of art if it is of "recognized stature."

This is the point that the artists behind 5Pointz were suing to enforce. According to the artists' attorney, the works at 5Pointz meet all the criteria for protection under VARA and as a result, the parties seeking to develop the new real estate would need a signed waiver from every artist to tamper with the graffitied walls. Judge Block's response: “If the Last Supper was there, it would be an artwork of recognized stature.”

What exactly does it take for a work to meet the "recognized stature" standard? That's not exactly clear. A precise definition is not established in VARA and as a result, its precise meaning varies by jurisdiction. Per some of the relevant case law (namely, Carter v. Halmsley), the test dictates that a work must have: (1) merit or intrinsic worth and (2) public acknowledgement of the merit. In assessing recognized stature, courts generally rely on expert testimony, but such testimony is not always necessary.

Reviews of exhibitions in which the work appears, other critical comment, catalogues, and newspaper articles have all be employed by courts to determine if a work is of "recognized stature." Judging by Judge Block's Last Supper comment, it appears the "recognized stature" standard is a very high bar, as he refers to one of Leonardo di Vinci's works.

While 5Pointz definitely lost its battle here, as their works will be destroyed in the relatively near future, the developer, G&M Realty says that the new buildings will have panels available for graffiti artists to use as canvasses.