Tag: graffiti

Victory for 5Pointz Artists in the Second Circuit

5pointz artworks being whitewashed in 2013

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.

Moving a Street Art Gallery in Austin

Since 2011 the HOPE Outdoor Gallery in Austin has offered permission walls for aspiring street artists. Hope stands for “Helping Other People Everywhere”. The site was a failed condo development which was converted into an outdoor gallery with the help of artist Shepard Fairy in 2011. It has become quite the tourist and Austin attraction. Fairey of course is best known for his OBEY stickers, and the controversy over his successfully lifted Obama HOPE poster.

Now though the park is moving to a new location on 6 acres outside of central Austin near the Austin-Bergstrom International Airport. The new site should still attract visitors and Instagram photo hunters, but will not be quite so centrally located North of bustling Lamar in the heart of Austin. That property is a valuable piece of land in Austin, and as one of the founders of the HOPE organization which manages the outdoor gallery Andi Scull Cheatham told the Austin Chronicle in 2016:

This project was meant to have a shelf life of a couple years, but once the owner saw how much it had been embraced and loved by the community, he’s done everything he can to keep it going.

The move was approved in February by the Austin Historical Landmark Commission. Part of the cement wall of the existing park will be moved to the new location, but the rest of the walls will be demolished. An amicable arrangement as compared to the 5Pointz dispute.

  1. Craig Hlavaty, Austin’s “Graffiti Park” to be demolished – Houston Chronicle, Houston Chronicle (Jan. 30, 2018), https://www.chron.com/news/houston-texas/texas/article/Austin-Graffiti-Park-to-be-demolished-Hope-Outdoor-12536309.php#photo-10133301.
  2. Nicole Raney, Downtown Austin’s iconic graffiti park searches for new home, Austin Culturemap (8.8.2016), http://austin.culturemap.com/news/arts/08-08-16-hope-outdoor-gallery-castle-hill-grafitti-new-location/?platform=hootsuite.
  3. Community bids fond farewell to HOPE Outdoor Gallery | Texas (Feb. 25, 2018), http://www.kxan.com/news/local/austin/community-bids-fond-farewell-to-hope-outdoor-gallery_20180312075742473/1031502585.

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).

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).

Note on Using Trademark law to protect street art from fashion

Three street artists known as Revok, Reyes and Steel brought an action against Roberto Cavalli for appropriating this mural a clothing line
Three street artists known as Revok, Reyes and Steel brought an action against Roberto Cavalli for appropriating this mural a clothing line

Maribeth Smith has written an interesting student note in the Brooklyn Law Review which argues that trademark protection may be a good way to protect street artists from having their works appropriated by fashion designers:

Graffiti has transformed over the last several decades from a sign of urban blight to a sign of artistic expression. As a result of this shift, clothing designers and other players in fashion have begun to use images of “street art” as part of their lines. This leaves graffiti artists with no way of protecting their art, especially because of the illegal nature of graffiti. This note examines current sources of law that can be used to protect artists from this infringement. Artists have unsuccessfully argued under both moral rights and copyright theories. However, copyright and moral rights analyses do not address the nuanced issues that illegal art presents because of the way both areas of law have been interpreted by the courts. Moral rights have traditionally been thought of as preservationist in nature, and copyright has traditionally only covered legally made works of art. However, there is one avenue that can be used to protect this art, which is false designation of origin under the Lanham Act, the federal trademark statute. This note argues that the Lanham Act is a source of law that graffiti artists can utilize to protect their work.

Maribeth Smith, Tagging the Lanham Act:  Protecting Graffiti Art from Willful Infringement, 81 Brooklyn Law Review (2016).

5Pointz Whitewashed

5pointz artworks being whitewashed
5pointz artworks being whitewashed

Very early this morning the artwork at the 5Pointz was whitewashed over at the urging of Jerry and David Walkoff, the landlords of the building. 5 Pointz has become a canvas for Graffiti artists. Last week a federal judge in Brooklyn denied a temporary injunction petition by artists seeking to save the building from demolition.

In an interesting twist, this whitewashing may be considered an act of intentional mutilation and destruction, and may in fact make VARA claims for these artists more likely to succeed—particularly if the intentional destruction of these works can be shown to prejudice the honor and reputation of specific individuals. The whitewashing was certainly done in a direct way to preclude further legal action, but it may have only emboldened opponents and demonstrated some really egregious bad faith on the part of the building owners.

Student note on using the first amendment to protect uncommissioned graffiti

Some art by Ack! here in Houston, now painted over

Margaret Mettler, a JD candidate at Michigan Law has posted her student note on SSRN: Graffiti Museum: A First Amendment Argument for Protecting Uncommissioned Art on Private Property, 111 Michigan Law Review 249 (2012). From the abstract:

Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner. Meanwhile, graffiti has risen in prominence as a legitimate art form, beginning in the 1960s and most recently with the contributions of street artists such as Banksy and Shepard Fairey. Some property owners may find themselves fortuitous recipients of “graffiti” they deem art and want to preserve in spite of graffiti abatement ordinances and sign regulations requiring the work’s removal. This Note argues that private property owners who wish to preserve uncommissioned art on their land can challenge these laws under the First Amendment, claiming that, as applied, regulations requiring removal are unconstitutional because they leave the property owner insufficient alternative channels for expression.

An interesting paper. As the value of graffiti increases, the law must catch up to help landowners who want to hold on to it. An idea which runs counter to the municipal ordinances which want to clean it up. The idea of who owns something that has value, but has no owner challenges a lot of the our underlying assumptions about property.

Questions or Comments? Email me at derek.fincham@gmail.com