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.

Judges Just Don’t Like VARA and Applied art

The Burning Man installation, "La Contessa"
The Burning Man installation, “La Contessa”

Daniel Grant reports on a recent Visual Artists Rights Act case involving the Burning Man re-purposed bus known as La Contessa.

A recent court decision in Nevada raises this question and, perhaps more fundamentally, the issue of whether or not VARA might need to be rewritten or updated to account for a broader definition of art. On June 8 of this year, a three-member Appeals Court panel affirmed a 2009 lower court ruling that called the demolition of a refashioned school bus—turned into a Spanish pirate ship on wheels and used for events as part of the annual Burning Man late-August to early-September festival in Black Rock Desert, Nevada between 2002 and 2005—not a violation of VARA, because the vehicle in its new form did not constitute fine art but “applied art.”

The 16’ x 60’ pirate ship, called La Contessa, was created by two artists, Simon Cheffins and Gregory Jones, who transformed an out-of-commission school bus into a replica 16th century Spanish galleon that included a hull, decking, masts, and a hand-crafted figurehead. La Contessa added to the sometime circus nature of Burning Man, used for rides, marching band performances, children’s treasure hunts and even two weddings. After the conclusion of the festival, the vehicle was put into storage on nearby land controlled by a woman, Joan Grant, with a lifetime tenancy of the property. However, in 2005, Grant’s home burned down and she abandoned her tenancy, which was then taken over by a limited liability company controlled by a Michael Stewart. “La Contessa” remained on the property and was not reclaimed by Cheffins and Jones the following year, and in late 2006 Stewart dismantled and then burned the wooden structure so that a scrap metal dealer could remove the underlying school bus. In 2009, the artists brought a VARA lawsuit against Stewart, losing in district court and more recently on appeal. “The focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature,” the Appeals Court ruled, although noting that the ship has “some artistic or aesthetic merit.”

In a concurring opinion, one of the three judges, Margaret McKeown, expressed concern that the ruling being issued was not workable and required “a more nuanced definition of ‘applied art’ that balances between the risk of unduly restricting VARA’s reach and the risks of turning judges into art critics.”

Daniel Grant, The More Art Changes, the More Urgent an Update to the Visual Artists’ Rights Act Is, Observer (Aug. 3, 2016), http://observer.com/2016/08/the-more-art-changes-the-more-urgent-an-update-to-the-visual-rights-act-becomes/.
CHEFFINS v. Stewart, Court of Appeals, 9th Circuit 2016 – Google Scholar, https://scholar.google.com/scholar_case?case=7731083587113005243&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.
CHEFFINS v. Stewart, Dist. Court, D. Nevada 2011 – Google Scholar, https://scholar.google.com/scholar_case?case=10972864568398950890&q=la+contessa+visual+artists+rights+act&hl=en&as_sdt=6,44.