Second Circuit affirms $6.75 million statutory damages award against property owner for painting over temporary works of graffiti art at 5Pointz exhibition space, ruling that works were protected from destruction under Visual Artists Rights Act of 1990.

In a significant ruling examining the contours of the Visual Artists Rights Act of 1990, an amendment to federal copyright law that grants certain “moral rights” to visual artists, the Second Circuit affirmed a district court ruling that a real estate developer was liable under VARA for $6.75 million in statutory damages after he painted over 45 works of graffiti art at the “graffiti mecca” known as 5Pointz in Queens, New York. The developer, Gerald Wolkoff, owned a series of warehouses that, under the curatorship of distinguished graffiti artist Jonathan Cohen, was transformed into an exhibition space for graffiti artists in 2002. Displaying over 10,000 works of art during its lifespan, 5Pointz became a world-renowned center for graffiti art, attracting thousands of visitors each day, as well as celebrities and media coverage.

Cohen discovered in 2013 that Wolkoff intended to demolish 5Pointz and build luxury apartments on the site. After unsuccessfully trying to prevent the demolition by raising funds to buy 5Pointz and, separately, to have it designated as a site of cultural significance, Cohen and other artists sued Wolkoff under VARA.

VARA provides certain moral rights to visual artists, including the right of attribution, and also the right to prevent any intentional destruction of a work of “recognized stature” or the distortion, mutilation or modification of a work that would be prejudicial to the artist’s honor or reputation. For artwork incorporated into buildings, the artist’s rights may be waived only with a signed instrument or, if the work is removable, after providing or attempting to provide the artist with notice of the intended action affecting the artwork. As with other claims under the Copyright Act, VARA violations entitle artists to actual damages or statutory damages ranging from $750 to $30,000 per work, and up to $150,000 per work for willful violations.

The district court granted the artists a temporary restraining order to prevent the demolition of 5Pointz. But when the TRO expired, and after the court advised that it would not grant a preliminary injunction, Wolkoff hired painters to whitewash 5Pointz, painting over 49 works of graffiti art. Following trial, the district court ruled that 45 of the works had achieved “recognized stature” and that Wolkoff violated VARA by destroying them through the whitewashing. The court also determined that Wolkoff’s actions were willful, stating that Wolkoff acted out of “pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art,” and awarded the artists the maximum statutory damages, amounting to $6.75 million.

On appeal, the central issue was whether the works had achieved “recognized stature.” The Second Circuit held “that a work is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community,” with artistic quality being the most important indicator of “stature,” with the acknowledgment of that stature by the artistic community determining whether the work is “recognized.”

Wolkoff argued that, because the works were temporary (with some graffiti works being displayed for days or weeks and others on a more permanent basis), they could not be deemed to have recognized stature. The Second Circuit disagreed, explaining that nothing in VARA excludes temporary works from being of “recognized stature.” The court pointed to other temporary works of demonstrable stature and recognition, such as Christo’s “The Gates” at Central Park and works by well-known street artists. The Second Circuit also rejected Wolkoff’s argument that the artists did not have VARA protections because they knew 5Pointz might eventually be torn down and that their works could be destroyed, agreeing with the district court’s observation that Wolkoff made no attempt to satisfy VARA’s explicit waiver or notice requirements.

The Second Circuit also found no clear error in the district court’s findings as to the works’ recognition and stature, based on the extensive testimonial and documentary evidence, including art experts. Bolstering this conclusion, according to the Second Circuit, was the fact that the works had been curated by Cohen, himself a respected artist, and that the acclaimed 5Pointz site itself lent stature to the works, just as a painting hanging in the Louvre would enjoy increased stature. Finding no clear error in the district court’s decision, the Second Circuit affirmed the district’s ruling on liability.

The Second Circuit further rejected Wolkoff’s challenge to the maximum statutory damages award. Explaining that “a violation is willful when a defendant had knowledge that its conduct was unlawful or recklessly disregarded that possibility,” the Second Circuit explained that Wolkoff’s conduct satisfied this standard because he was aware of the VARA claims against him prior to whitewashing 5Pointz but deliberately chose not to follow VARA’s notice provision, without any legitimate business reason not to do so. The Second Circuit rejected Wolkoff’s challenge to the amount of the award for similar reasons, agreeing with the district court that Wolkoff’s conduct was an “act of pure pique and revenge” toward the artists who had sued him. Maximum statutory damages were also appropriate upon consideration of other relevant factors, the court explained, including the value of the destroyed art, the parties’ respective conduct in the course of the litigation, and the goal of deterring similar conduct in the future by Wolkoff and other building owners.