U.S. Markets closed

Judge Awards $6.75M to Street Artists for Destroyed Works

[caption id="attachment_21070" align="alignnone" width="620"] 5Pointz, an “aerosol art” gallery in Long Island City, Queens.[/caption] A federal judge has awarded $6.75 million to a group of street artists whose works, which once adorned a now-demolished complex of buildings in Queens, were whitewashed by the property owner before the structures were razed. The award, issued by U.S. District Judge Frederic Block of the Eastern District of New York, follows a first-of-its-kind jury trial that explored the question of whether graffiti should be considered art worthy of protection under the Visual Artists Rights Act of 1990 (VARA). The case concerns 5Pointz, an “aerosol art” gallery that formed in a group of abandoned warehouses in Long Island City, Queens. The buildings attracted graffiti artists through the 1990s, when graffiti was generally viewed as a nuisance and Long Island City was crime-ridden, but in 2002, property owner Gerald Wolkoff put artist Jonathan Cohen in charge of the site and to curate the art. In the years to follow, as the neighborhood improved and graffiti became increasingly viewed by the general public as a legitimate art form, 5Pointz drew artists from around the world and became a popular tourist destination. But in 2013, Cohen learned that Wolkoff had begun the process to obtain permits to demolish 5Pointz and build luxury condos. Cohen filed for a preliminary injunction to prevent the site’s destruction and, shortly after Block denied his petition, Wolkoff had virtually all of the artwork covered in whitewash. [caption id="attachment_21071" align="alignnone" width="620"] 5Pointz after being covered in whitewash.[/caption] In 2014, Cohen and other 5Pointz artists amended their complaint, seeking damages for financial losses and harm to their reputations. In November, following a three-week trial, an advisory jury found that 28 of the works at 5Pointz had “recognized stature” under VARA—which gives artists the right to protect their works from destruction—and eight were mutilated by whitewashing; the jurors awarded $545,750 in actual damages and $651,750 in statutory damages. While Block said in a ruling issued on Monday that he agreed with the jury that Wolkoff trampled on the artists’ VARA rights, he broke with the jury on which works should have recognized stature: he said 45 of the 49 works that were at issue in the lawsuit had recognized stature under VARA, that Wolkoff willfully destroyed the works, and awarded $150,000 for each of the works, the maximum statutory damage amount, to the plaintiffs. Block said his decision to award maximum statutory damages against Wolkoff was driven by the “sloppy, half-hearted” nature of the whitewashing, which left the mutilated works visible to passengers on the No. 7 train that passes near the site, that he reaped profits by obtaining a variance for the site that boosted its value from $40 million to $200 million, and Wolkoff’s “problematic” and “unrepentant” demeanor while he was on the witness stand. “If not for Wolkoff’s insolence, these damages would not have been assessed,” Block said. “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.” Eric Baum, co-managing partner of Eisenberg & Baum, and Andrew Miller, a senior associate with the firm, represented the plaintiffs. In an interview, Baum called Block’s ruling “precedent-setting” and that it carries “monumental significance” for the rights of artists around the country. “Although 5Pointz is gone, its cultural, and now legal, significance endures,” Baum said. Ingram Yuzek Gainen Carroll & Bertolotti partners David Ebert and Mioko Tajika represented the defendants in the case. They did not respond to a request for comment.