In a ruling which will likely feature in future art law coursebooks, the Second Circuit has affirmed a $6.75 million judgment against a real estate developer for whitewashing a number of murals at 5Pointz. This is a rare victory for artist’s moral rights in an American court.
The site became known as a prominent aerosol art haven in 2002 when the developer Gerald Wolkoff asked Jonathan Cohen to install some art on a warehouse in Long Island City in Queens. Cohen curated the space and had a rotation of various artists use the building. It attracted worldwide attention. It also displayed itself to passengers every time a 7 train would pass by:
As is often the case with moral rights cases that have been litigated under the Visual Artists Rights Act, changed circumstances for the building led to the deveoloper seeking to capitalize on the new-found gentrification of the neighborhood. In 2013 artists learned that Wolkoff was planning to destroy the warehouses to build a condominium complex. The artists sought landmark status and asked for an injunction under the Visual Artists Rights Act. That injunction was not granted, and rather than wait for the legal process to play out, or wait to let the artists preserve their works, Wolkoff whitewashed the art. That act probably did more harm to Wolkoff’s argument than any thing, with the district court finding the art had achieved recognized stature and imposing the maximum statutory damages of $150,000 per work (45 works in total) of art in order to sanction Wolkoff’s conduct and to vindicate the policy supporting the moral rights act.
Donn Zaretsky in commenting on the ruling wrote that the damages may have been the most interesting part of the ruling:
Now, it may be the facts of this case were so unique and so egregious that it won’t have a wider impact — basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, “without any genuine business need” to do so, “simply, as the district court found, an ‘act of pure pique and revenge.'” But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can’t be proven could be a big deal.The Art Law Blog
Moral rights are rights that have been around for a very long time. They originated in the French Revolutionary idea of ‘droit moral de l’auteur’, stemming from the idea that if art is harmed, the artist also is harmed.
I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way.
- Amanda Ottaway, Court Upholds Massive Judgment for 5Pointz Graffiti Artists (Feb. 20, 2020), https://www.courthousenews.com/court-upholds-massive-judgment-for-5pointz-graffiti-artists/.
- JOHN ANNESE, Federal appeals court upholds $6.7 million award to graffiti artists at Queens’ famed 5Pointz site, nydailynews.com, https://www.nydailynews.com/new-york/nyc-crime/ny-5-pointz-appeals-court-decision-20200221-zplrtn265ndn7jk7suokdehvfq-story.html.
- Judge Rules Developer Must Pay 5Pointz Graffiti Artists $6.7M [UPDATED], Hyperallergic (Feb. 12, 2018), https://hyperallergic.com/426658/judge-rules-developer-must-pay-5pointz-graffiti-artists-6-7m/.