Category: Art Law

$6.7 Million Award for 5Pointz Artists

5Pointz before it was whitewashed

A federal court has held that the real estate developer Jerry Wolkoff is liable for intentionally destroying 45 works of art when they were whitewashed in 2013, amounting to a total award of $6.75 million dollars. The ruling comes as a bit of a surprise given the limited success of artists under the Visual Artists Rights Act in the past.

Jerry Wolkoff purchased the vacant factory in the 1970s in Brooklyn after manufacturing had left the area. Graffiti artists asked him for permission to display their art on the building in the 1990s, and he agreed. The building then became a haven for graffitie, even a renowned attraction. An artist Jonathan Cohen, otherwise known as Meres One, started acting as a curator of the space in 2002.

By 2013 the factory had become a valuable piece of real estate, and Wolkoff had plans to demolish the site and start a new development on the. The site had been much beloved by then, and so the artists brought suit to prevent the destruction of the art. That injunction was unsuccessful, and so Wolkoff immediately whitewashed the art, a willful act that seems to have been the primary driver for Judge Block’s scathing decision:

If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully. Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order.

The shame of it all is that since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time. It would have been a wonderful tribute for the artists that they richly deserved.

The ruling may be appealed, but the decision marks an important precedent for works of visual art and especially works of temporary art. Landscape art, graffiti, and other similar works may be impacted by the ruling.

On one hand this ruling stands as an obvious victory for the artists themselves. But taken in the broader context, will future property developers be wary about inviting graffiti artists? Perhaps street art has become so popular and ubiquitous now, that there will not be a chilling effect of future uses of derelict buildings for graffiti exhibitions like Cohen helped create.

Moral rights and property rights on trial in Brooklyn

5Pointz before it was whitewashed

Alan Feuer reports on the opening of the jury trial brought by artists whose works were removed from the 5Pointz building back in 2013. They are seeking a remedy for the infringement of their moral rights under a federal law called the Visual Artists Rights Act.

Eric Baum, a lawyer for the artists in his opening statement told the jury:

[T]hat they would hear from several art experts that the whitewashed graffiti was indeed of “recognized stature” and that Mr. Wolkoff, no matter how generous he had been with his buildings in the past, failed to give the artists the proper 90-day notice that 5Pointz was slated to come down. Mr. Baum added that his clients never wanted to sue; they wanted to save 5Pointz. But once the complex and the art had been destroyed, he said, they had only two choices: ask for money or do nothing.

The buildings developer, Jerry Wolkoff was represented by David Ebert who in his opening statement:

[A]cknowledged that 5Pointz was a “fantastic place” — one that Mr. Wolkoff helped create — but he argued that the law in question was irrelevant. “V.A.R.A. does not protect buildings,” he said. “It protects art.

The case is a rare instance of a moral rights claim brought on behalf of artists which has made it to the merits before a jury. Bringing claims in federal court is an expensive proposition, and few of these cases survive the summary judgment stage. The case will be fascinating to watch unfold.

 

  1. Alan Feuer, At Core of 5Pointz Trial: Is Graffiti Art Protected by Law?, The New York Times, October 17, 2017, https://www.nytimes.com/2017/10/17/nyregion/at-core-of-5pointz-trial-is-graffiti-art-protected-by-law.html (last visited Oct 18, 2017).

Student note on the blue wave experimental protest

The Spring issue of the Northwestern Journal of Technology and Intellectual Property has published an interesting student note by Jaya Bajaj titled “Art, Copyright, and Activism: Could the Intersection of Environmental Art and Copyright Law Provide a New Avenue for Activists to protest Various Forms of Exploitation?” The piece works best as a thought experiment, and may be an argument used by the many detractors of moral rights for artists to further restrict the expansion of the still-developing series of rights for artists. But I find the article, and the experimental protest to be thoughtful and well-reasoned. Here’s the abstract:

In 2015, a group of activists led by Aviva Rahmani began an artistic venture known as “Blued Trees.” They painted blue sine waves onto trees along a proposed pipeline pathway, and subsequently filed for federal copyright registration. They hoped to use copyright law and the Visual Artists Rights Act as a sword against fossil fuel companies. Although the piece was destroyed later that year as part of the pipeline construction, the “Blued Trees” movement continues. This note will discuss Rahmani’s legal theory and consider this theory’s strengths and weaknesses. This experimental protest brings forth a number of unanswered questions about the nature of copyright law. It is no secret that contemporary art forms, and the mediums involved, are becoming increasingly diverse. Therefore, this note also seeks to address the merits and limitations of current copyright law in terms of environmental and installation art.

Jaya Bajaj, Art, Copyright, and Activism: Could the Intersection of Environmental Art and Copyright Law Provide a New Avenue for Activists to Protest Various Forms of Exploitation?, 15 Nw. J. Tech. & Intell. Prop. 53 (2017).

Forged antiquities and art history

An 8 foot tall forged terracotta statue, alleged to have been Etruscan. Displayed at the Met for decades. Notice it cannot bear its own weight.

I cannot speak to broader trends among art curators but I think it is a mistake to blame broad trends in the field of art history for the existence of forgeries. They have always been present, and likely always will be in some form. Failing to conduct a rigorous study of the history of an object should have course be criticized, but that kind of unfortunate mistake should be contrasted when an object which might have a good history free of the potential of looting. This happens for antiquities, works of art, and many other objects. Some forgeries are made maliciously to fool, other works of art which are inauthentic appear absent any wrongdoing of the creator.

In fact the shaming of institutions which takes place when a forgery or fake surfaces has a number of unfortunate consequences.

Continue reading “Forged antiquities and art history”

Smith on ‘Community Rights to Public Art’

5Pointz before it was whitewashed

Cathay Smith (Asst. Prof. at Montana School of Law) has published an article in the St. John’s Law Review, Community Rights to Public Art. The article surely would have generated the attention of the student editors of the St. John’s Law Review, as the 5 Pointz building, until it was demolished in 2014, was located just a few miles away from the St. John’s campus. From the abstract:

In 1932, the Rockefeller family commissioned Diego Rivera to paint an enormous mural as the centerpiece of the RCA Building lobby in Rockefeller Center in New York City. The colorful mural that Rivera painted, titled Man at the Crossroads, included images of social, political, industrial, and scientific visions of contemporary society. One night in February of 1934, the Rockefellers hired workers to chisel the mural off the wall without any warning or notice. The mural was broken into pieces before being carted away and dumped. The destruction of his mural shocked Rivera. More importantly, however, the destruction of Rivera’s mural permanently deprived the public of a significant work of public art and heritage. The public was stunned at the destruction of the mural; protesters called the Rockefellers’ act “art murder” and “cultural vandalism.” Nevertheless, the mural was the Rockefeller’s property and, despite public support for the mural, they had the legal right to destroy it. More than eight decades later, communities still face this type of loss of heritage through the destruction of public art. For instance, public outrage followed the 2014 demolition of 5 Pointz in New York, when the owner of 5 Pointz whitewashed and destroyed the 20-plus-year-old “graffiti Mecca” to make way for two new $400 million luxury high-rise apartment towers. On the opposite coast, just last year, Piedmont Avenue neighbors in Oakland were shocked when the owner of Kronnerburger Restaurant demolished a beloved community mural in connection with its construction of a new trendy burger restaurant.

Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth questions communities will need to grapple with as they weigh whether and how to protect works of public art as cultural heritage.

  1. Cathay YN Smith, Community Rights to Public Art, 90 St. John’s Law Review 337 (2016).

Operation Pandora nets 75 arrests in Europe

This Byzantine depiction of Saint George was one of the artworks recovered.

Earlier this week police in Europe announced the fruits of operation Pandora, an investigation into an international art trafficking network. In total, 75 people were arrested and 3,500 objects and artworks were seized. The investigation centered in Spain and Cyprus. The network allegedly moved works of art from conflict areas, and dealt in objects stolen from museums. The Europol press release boasted that over 48,000 individuals were investigated, almost 30,000 vehicles were investigated (along with 50 ships).

According to the release the aim of the investigation was to:

[d]ismantle criminal networks involved in cultural theft and exploitation, and identify potential links to other criminal activities. Moreover, there was a special focus on cultural spoliation, both underwater and on land, and the illicit trafficking of cultural goods, with a particular emphasis on conflict countries.

The operation was supported by UNESCO, INTERPOL, the World Customs Organization, Europol, and law enforcement officials from 18 countries. This was an extensive operation, which took a great deal of cooperation and resources. The investigators and policy makers who made this investigation successful should be commended. And yet, is this kind of large scale investigation sustainable? Will art thieves and traffickers be chastened and refrain from art crimes? Will the arrests actually produce successful prosecutions unlike so many of American investigations?

  1. Raphael Minder, 75 Arrested in European Crackdown on Art Trafficking, The New York Times, January 22, 2017, https://www.nytimes.com/2017/01/22/world/europe/75-arrested-in-european-crackdown-on-art-trafficking.html (last visited Jan 25, 2017).
  2. 3561 artefacts seized in Operation Pandora, Europol, https://www.europol.europa.eu/newsroom/news/3561-artefacts-seized-in-operation-pandora (last visited Jan 25, 2017).
  3. “Operation Pandora”: police in Spain and Cyprus lead major bust of antiquities traffickers, , http://theartnewspaper.com/news/operation-pandora-police-in-spain-and-cyprus-lead-major-bust-of-antiquities-traffickers/ (last visited Jan 25, 2017).

Kreder on the Public Trust

“The Gross Clinic”, Thomas Eakins, 1875. This work was sold by Thomas Jefferson University to the Philadelphia Museum of Art and the Pennsylvania Academy of Fine Arts in 2006, prompting discussion of whether this work had entered the “public trust”.

Prof. Jennifer Anglim Kreder has published an article examining the concept of the “Public Trust” in the Pennsylvania Journal of Constitutional Law. The doctrine has been used in environmental and museum law, but has a richer history:

It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”

 

Kreder, Jennifer Anglim, The ‘Public Trust’ (January 21, 2016). 18 University of Pennsylvania Journal of Constitutional Law 1425 (2016).

Comment on in-kind payments with art

"The Revolution (Mural)" by David Alfaro Siqueiros

“The Revolution (Mural)” by David Alfaro Siqueiros

Julia L.M. Bogdanovich, a senior editor of thePennsylvania Law Review has authored an interesting comment examining how artists could pay taxes with in-kind payment. She uses a comparative approach highlighting both Mexico and the United Kingdom. From the Introduction:

According to popular accounts, in 1957 David Alfaro Siqueiros marched into Hugo B. Margáin’s office with a radical and risky proposal. There, the famous muralist bluntly told the new Director of Income Tax that the recent income tax reforms were unduly burdening Mexico’s artists because they “did not know about accounting or tax laws” and had no money with which to pay their obligations. “The only thing we have are paintings,” Siqueiros insisted. However, rather than seek a complete tax exemption for artists, he told Margáin that artists could instead pay taxes with their artwork. Because their art was valuable, Mexico could amass an enviable collection. Tasked with ensuring the success of the new tax system,8 perhaps Margáin was inclined to be creative, or perhaps he was an art aficionado. Regardless of his motives, Margáin replied, “It doesn’t seem like a bad idea.” Under Margáin’s leadership, the Mexican Ministry of Finance and Public Credit accepted Siqueiros’ proposal and launched a program called Pago en Especie (Payment in Kind) in November 1957, when it collected its first income tax payment in art.

  1. Julia LM Bogdanovich, Devising an Artful Tax: An Appraisal of Payment-in-Kind Income Taxes in Mexico and the United Kingdom, 164 U. Pa. L. Rev. 983 (2015).

The Sad State of Moral Rights in the United States

Did Peter Doig paint this in 1976?
Did Peter Doig paint this in 1976?

Many nations assign to artists moral rights over their creations. One of the core moral rights is the right to claim or exclude works of art in your body of work. But not in the United States. NPR reports on the bizarre case involving Peter Doig and the art he’s trying to disclaim.

Federal Judge To Rule On Whether Peter Doig Painted Desert Landscape, NPR.org, http://www.npr.org/2016/08/23/491024818/federal-judge-to-rule-on-whether-peter-doig-painted-desert-landscape.