• In matter of first impression, district court denies preliminary injunction under federal Visual Artists Rights Act (VARA) to graffiti artists seeking to prevent destruction of Queens property that had become “curated” space for celebrated graffiti art, where artists created their works knowing the works were intrinsically transient in duration, and where artists could--at least theoretically--receive money damages in lieu of injunctive relief.

This case involves an effort under the federal Visual Artists Rights Act (VARA) to prevent the destruction of a Queens factory complex that had become a magnet for graffiti artists and, over time, a curated, creative “work in progress” attracting popular and some critical acclaim. The court declined to grant a preliminary injunction, finding that while the plaintiffs (graffiti artists) might succeed on at least some of their claims under VARA, they could show neither irreparable harm nor that the balance of the hardships tipped in their favor, because they knew, or should have known, that their works would be transient in duration and that the factory complex would be torn down.

The factory complex, in Long Island City, Queens, became underutilized starting in the 1990s, which made it attractive to graffiti artists. In 2002, plaintiff Cohen approached defendant Gerald Wolkoff, the factory’s owner, with the idea of improving the quality of the graffiti art by organizing and selecting the artists who could paint there. Wolkoff agreed, and the factory-site-turned-graffiti-mecca became known as 5Pointz and a major tourist attraction. In recent years, Wolkoff and his partners, the other defendants, commenced plans to demolish the factory complex and redevelop the space. The local planning authority granted permits for the proposed development, but plaintiffs opposed the planned demolition, invoking VARA, and sought a preliminary injunction. 

The district court, noting that the case raised an issue of first impression, ultimately denied plaintiffs’ motion. Plaintiffs invoked the part of VARA that gives the “author of a work of visual art” the right to sue to prevent the destruction of that work if it is one of “recognized stature.” VARA recognizes that a work of visual art “may be incorporated in or made part of a building” and includes within its protective reach any work that was created after its enactment on June 1, 1991, unless a written waiver has been obtained from the artist. 

As plaintiffs’ works postdated VARA’s enactment and defendants had obtained no written waivers, the court held a hearing in which the parties presented expert testimony on the issue of artistic “stature.” The defendants’ expert took a restrictive view of both the concept of “stature” and “recognition.” In her opinion, while “quality is certainly one of the factors in the stature” of a work of art, “stature is recognizing not particular qualities of objects, but the way these qualities are valued by the public.” She acknowledged that an aerosol artist’s work, although a “subculture” of the art world, could be of recognized stature if there were a “consensus of the scholarly community and the art community,” even if that work were painted on the exterior of a building. Plaintiffs’ expert countered that 5Pointz and its extraordinary aerosol art had become “[p]art of the urban landscape” and “should be preserved, if possible.” 

The court concluded that at least some of the 24 works, which plaintiffs contended were of recognized stature, present “sufficiently serious questions going to the merits to make them a fair ground for litigation.” Ultimately, however, whether viewed as bearing upon the issue of irreparable harm or the balancing of the hardships, the court concluded that the transient nature of the plaintiffs’ works was fatal to their request for injunctive relief. The court found that the artists knew that the buildings – and the art with them – would be destroyed. The plaintiffs, moreover, could be compensated by monetary damages for the loss of their art (if they succeeded on their VARA claims), and their art also could be portrayed (and sold) in other media, including photos and videos of the works. The court also noted that other legal vehicles were potentially available to preserve the building, such as through “landmark” designation or even the exercise of eminent domain. For purposes of injunctive relief, however, the court concluded that VARA was ultimately unavailing.