The legal battle over 5Pointz has entered a new phase this week, as a complaint by some of the artists whose works were destroyed when the building was whitewashed has been filed in Federal Court. Though this may seem to be a new suit or new proceeding, it really should be viewed as a continuation of the dispute that has been ongoing since 2013 and earlier. Only instead of asking a court to prevent the destruction of the works at issue, now the artists are seeking compensation for the actual destruction of the works when they were whitewashed. Nicholas O’Donnell has kindly posted this new complaint on his blog, and he argues that one interesting thing to watch in the dispute, is the measure of damages:
Lastly, this case will be very interesting to watch on the question of damages. Presumably none of the works were registered and entitled to statutory damages. So what is the measure of their financial loss? The defendants are not exploiting the works in a way that could result in profits to be turned over, they destroyed the graffiti. Is the damage to the artists’ reputations? How will that be quantified? One theme we discussed last week’s “Copyrights on the Street” panel in Newport was the idea of a loss of “street cred” as a measure of damages, but there too, that had more to do with unauthorized exploitation than financial loss.
This Complaint seems drafted for the long game. The plaintiffs’ attorneys obviously know the contours of the first ruling, and one has to think the expectation is ultimately to get to the Second Circuit and make some governing law. It would be helpful, because despite the uptick in recent graffiti art cases, most have still settled before any substantive litigation or findings took place.
I think that’s right, but litigating in federal court is expensive, and it may be that the case is settled, which is a shame because often those settlements mean we don’t get a chance to see the law develop and look at the interesting question of how the Visual Artists Rights Act applies to works of ‘aerosol art’ like this. Of course, moving forward parties can avoid all of this and enter into their own agreements. Because in the long run, how many building owners in the future will see what Wolkoff did in this case, allowing artists to use this space, and feel more inclined to let artists use their buildings? They may want to steer well clear of this kind of dispute, which would sadly de-incentivize public arts spaces on buildings like this.
But it sure gave riders on the 7 train a show: