The US Court of Appeal for the Second Circuit upheld a $6.75 Million (£5.2 Million) judgement against real estate developer Gerald Wolkoff confirming that his whitewashing and destruction of graffiti murals at 5Pointz violated the Visual Artists Rights Act 1990 (VARA). The Federal Appeals Court affirmed the award of enhanced damages as it considered the destruction willful given Wolkoff’s rapid measures, preventing the artists from salvaging their work.

By way of background, in 2002 Wolkoff, invited distinguished street artists to transform a series of warehouse buildings he owned (collectively known as 5Pointz) in Long Island City, Queens into an exhibition space by spray-painting the walls with their art. The 5Pointz site evolved into a commercial value, enhancing cityscape, attracting thousands of tourists, contributing to the gentrification of the area.

In 2013, the artists learned that Wolkoff was planning to destroy the warehouses, which incorporated their art, to pave the way for luxury apartments. The artists sought damages by invoking two of the rights given by VARA to an author of a work of visual art: first, the right to prevent any destruction of a work of recognized stature; and second, the right to receive 90 days' notice before any removal or destruction. After the District Court rejected the artists' application for a preliminary injunction and before it finalised a written opinion as to the amount of damages, the real estate developer whitewashed the murals.

At trial, the focus of the dispute was whether the 5Pointz art had achieved recognized stature and therefore would be protected from destruction under VARA. The court observed that the works "reflect[ed] striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5Pointz". It referred to ephemeral works by Banksy, which exemplify that "Although a work's short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognized stature."

The case demonstrates how far street art has come from the 1970s during which it was deemed an act of vandalism and social nuisance, to an established market, a booming street art economy. Artists have continuously challenged the outdated notion that street art is not capable of satisfying the statutory conditions for copyright protection. However, prior VARA cases involving contemporary art rarely made it to trial as disputes were often settled privately. Christopher Robinson, who represented the artists in the case, said that the decision is significant because "it is a rare circuit-court level examination of VARA; it includes useful guidance for lower courts on the statute, for artists on their rights, and also for property owners on the simple steps they must take to avoid a result like this. Best of all, it's an affirmation of the importance of art in our society and the place that public art now occupies in it."

This test case serves victory to street artists: the judiciary officially acclaimed street art as a major category of contemporary art. It encourages property owners to negotiate in good faith with street artists by drawing up contracts that acknowledge an artist's moral as well as economic rights. Given our top tier international art law expertise, we understand the niche particularities of street art and are able to guide the relevant stakeholders through the negotiation process. We regularly advise street artists, developers and property owners, and Tim Maxwell, a Partner at the firm, advised The Creative Foundation in a successful and to date the only case concerning the ownership of Banksy's "Art Buff" mural.