Case Summary and Outcome

The Second Circuit Court of Appeals upheld the finding that even temporary works of art could achieve “recognized” stature and enjoy protection under the U.S. Visual Artists Rights Act (VARA). The case concerned the 5Pointz site in Queens, New York, renowned around the world for its aerosol art sprayed over the façades of several buildings. Gerald Wolkoff, the site’s owner decided to demolish the site in order to  build an apartment complex and ordered the facades  to be whitewashed, thus destroying the art.  He also denied artists’ requests to recover their art. The United States District Court for the Eastern District of New York ruled that some of the works on the site were of “recognized stature” and that Wolkoff willfully violated VARA in destroying them. The Second Circuit Court of Appeals upheld the ruling, agreeing that the temporary nature of aerosol art did not strip it of protection under VARA.

Facts

In 2002, Gerald Wolkoff purchased a site, which would become known as 5Pointz, and hired Jonathan Cohen to turn the abandoned warehouse into an exhibition space for local artists. Cohen rented out spaces for artists to create, and though many of the works were temporary, an elaborate process termed “creative destruction” by the district court determined when certain works were allowed to be painted over. Over its lifetime, 10,650 works were exhibited at 5Pointz and the site became world-famous. 

In May 2013, Cohen learned that Wolkoff had plans to demolish the site and build a luxury apartment complex in its place. Cohen and many of the artists sought protection from the New York City Landmarks Preservation Commission (LPC) and to raise enough money to purchase the site from Wolkoff. When both efforts failed, the artists sued Wolkoff under the Visual Artists’ Rights Act (VARA). 

The Visual Artists’ Rights Act of 1990 (VARA)establishes that authors of works of visual art have the right:
“A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and 

B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

VARA also prohibits the transfer of these rights, but stipulates that these rights may be waived only if the artist signs a written instrument. 

The plaintiffs applied for a temporary restraining order, which was subsequently granted. After the restraining order expired, the plaintiffs applied for a preliminary injunction, which the Court denied on November 12, 2013. However, the Court informed litigants that a written opinion would be forthcoming. Wolkoff began personally directing the whitewashing of art at 5POINTZ on the night of November 12, while banning artists from the site.

On February 12, 2018, the United States District Court for the Eastern District of New York ruled that of 49 contested works, 45 were of “recognized stature” and that Wolkoff willfully violated VARA in destroying them. Although the court however declined to award actual damages because it could not reliably fix the market value of the art works, it awarded the maximum amount of statutory damages, totaling $6.75 million to sanction Wolkoff’s conduct and to vindicate the policies behind VARA.

Decision Overview

The US Court of Appeals upheld the judgment of the lower instance court.

The Court first addressed Wolkoff’s assertion that “temporary” artworks did not enjoy protection under VARA. It recalled that when passing VARA, the US Congress adopted a specific definition of art that did not include “permanent” or “temporary” categories. Accordingly, there was no justification in adding additional criteria to the definition of art as doing so would have upset the balance achieved by the legislature. Further, the Court pointed to examples of works that were temporary, yet were clearly of renown, such as the 2005 Gates installation in Central Park that ran for just two weeks. In the 2008 Cartoon Network LP, LLLP v. CSC Holdings, Inc. judgment, a work that lasted just a few minutes satisfied the transitory duration requirement to qualify for the “recognized stature” category. Using this standard, the court reasoned that “street art,” such as that exhibited at 5Pointz, although often temporary, was subject to VARA protection.

The Court also refuted Wolkoff’s claim that the artists should have expected the destruction, noting that VARA was clear that this would only be legal if artists had waived their rights. Wolkoff violated VARA when he did not notify the artists nor allow them 90 days to remove their works.

Lastly, the Court turned to the assessment of whether the lower instance court was correct in concluding that the aerosol art at 5Pointz was renowned enough to be considered as “recognized in stature.” The lower instance court based its assessment of the artistic quality of the work on testimonies from artists, experts, and the curator of 5Pointz to determine that at least 45 works destroyed by Wolkoff were “recognized in stature.” The Court of Appeals agreed with such reasoning. It noted that the most important component of stature will generally be artistic quality to be determined by the “the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts.” Further, “since recognized stature is necessarily a fluid concept, we can conceive of circumstances under which, for example, a ‘poor’ work by a highly regarded artist—e.g., anything by Monet—nonetheless merits protection from destruction under VARA.” (p. 14) The Court  recalled Justice Holmes’s warning that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [visual art]” (p. 14, citing Bleistein v. 15 1 Donaldson Lithographing Co., 188 U.S. 239, 251 (1903)) Moreover, even if some works individually garnered less fame than others, they could also achieve “recognized stature” by virtue of their inclusion in a given venue or collection.

On these grounds, the Appeals Court affirmed the lower court’s findings that Wolkoff’s violation of VARA was willful and upheld its award of statutory damages.