5 Pointz and the Protection of Temporary Art

By: Erik Bartley

On February 12, the district court for the Eastern District of New York ruled in favor of twenty-one graffiti artists, stating that the destruction of their art was a violation of the Visual Artists Rights Act (VARA).[1] From 2002 to 2013, Jonathan Cohen headed a group of graffiti artists painting murals on a building in New York, owned by Gerald Wolkoff, that would come to be known as 5 Pointz.[2] Wolkoff had given these artists permission to paint on the walls, and the site became a well-known tourist attraction, and served as the setting for several music videos.[3] One feature of this attraction was that it would change over time, as new artists would paint over existing murals, although some of the more recognized artworks would be left alone.[4]

In 2012, Cohen had learned that Wolkoff had plans to tear down the building in order to build high rise condominiums.[5] Cohen, along with many other graffiti artists, sued Wolkoff to gain a preliminary injunction to prevent Wolkoff from destroying the artworks.[6] The court denied the preliminary injunction, but cautioned that Wolkoff may be liable for damages under VARA if he moved forward with his plans.[7] Before the court published their opinion, Wolkoff whitewashed the entire site, destroying 49 works of art. Cohen and 20 other graffiti artists shortly filed suit for damages under VARA.[8]

The court considered the main issue of whether temporary works of art should be protected under VARA even though there is no language in the Act directly stating it should.[9] The court noted that there was not much case law on the subject, but that it could extrapolate from the text of VARA’s protection of works on buildings and the few cases relating to graffiti.[10] Section 113(d)(1) states that an unremovable work of art incorporated in a building is protected unless the artist waives his rights in writing that is signed by both the artist and the building owner.[11] The court found that this strong provision of ensuring that artists must be made aware of the potential destructive removal should be strictly construed.[12]

The Court first looked at Board of Managers of Soho International Arts Condominium v. City of New York.[13] There, an artist sought to prevent his work from being permanently removed from the wall of a condo, with conflicting testimony over whether the work was meant to be permanent.[14] The court stated that the permanence of the artwork did not matter and denied summary judgement.[15] They found that VARA only allowed an artist to remove his artwork, not keep it where it was.[16] In doing so, the court found no distinction between temporary and nontemporary works.[17]

The Eastern District court also analyzed Flack v. Friends of Queen Catherine Inc., where an artist sued for damages when his statue deteriorated from being exposed to the outdoors.[18] The court found that there was no VARA protection for the passage of time and natural deterioration.[19] The Eastern District court interpreted this to mean that if one category of temporary art is given an exemption, that means that other types of temporary art must be protected.[20]

Finally, the Eastern District court analogized VARA to traditional copyright law, as VARA is a part of the Copyright Act.[21] In section 101 of the Copyright Act, it states that a work is created when it is fixed in a tangible medium of expression for more than transitory period of time.[22] Other courts have found that works should pass the minimal fixation requirement of copyrightability for works that have been fixed for at least several minutes.[23] The Eastern District court stated that without any contrary indications, it could be assumed that the same minimal fixation requirement for copyrightability should be applied to visual works of art under VARA.[24]

In the end, the court reasoned that Congress intended to include protection for temporary works of art under VARA.[25] The court ruled in favor for the graffiti artists and awarded them $6.7 million.[26] While Wolkoff has sent a Notice of Appeal, right now this case looks to be a huge victory for moral rights protection in the United States.

 


[1] Emily Sullivan, New York Judge Awards $6.7 Million To 21 Graffiti Artists For Destroyed Murals, NPR (Feb. 13, 2018, 10:35 PM), https://www.npr.org/sections/thetwo-way/2018/02/13/585416520/new-york-judge-awards-6-7-million-to-21-graffiti-artists-for-destroyed-murals.

[2] Cohen v. G&M Realty L.P., No. 13-CV-05612(FB)(RLM), slip op. 2018 WL 851374 at *16-*17 (E.D.N.Y. Feb. 12, 2018).

[3] Id. at *17.

[4] Id. at *18.

[5] Id. at *20-*21.

[6] Id. at *21.

[7] Id. at *5.

[8] Id. at *4-*5.

[9] Visual Artists Rights Act, 17 U.S.C. § 106A.

[10] Cohen, at *23.

[11] 17 U.S.C. § 133(d)(1).

[12] Cohen, at *24.

[13] Board of Managers of Soho International Arts Condominium v. City of New York, 2003 WL 21403333 at *1-*10 (S.D.N.Y. June 17, 2003).

[14] Id. at *10.

[15] Id.

[16] Id.

[17] Id.

[18] Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 526-35 (S.D.N.Y. 2001). PINCITE

[19] Id. at 534-35.

[20] Cohen, at *26.

[21] Id. at *26-*27.

[22] 17 U.S.C. § 101.

[23] Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d. 121, 121-29 (2d Cir. 2008).

[24] Cohen, at *27.

[25] Id.

[26] Alan Feuer, Graffiti Artists Awarded $6.7 Million for Destroyed 5Pointz Murals, NY Times (Feb. 12, 2018), https://www.nytimes.com/2018/02/12/nyregion/5pointz-graffiti-judgment.html.