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GRAFFITI ARTISTS GET $6.75 MILLION

5Pointz

After destruction of legendary 5Pointz artwork, artists receive substantial monetary award. On February 12, 2018, graffiti artists of the legendary 5Pointz site were awarded $6.75 million in damages for the wrongful and willful destruction of 45 works of art that once were displayed on the five-story buildings. The award comes after nearly five years of litigation between the graffiti artists and the owners of the 5Pointz buildings in Long Island City, Queens. To read CityLand’s prior coverage, click here.

5Pointz was comprised of several buildings owned by Gerald Wolkoff. Beginning in the 1990s, graffiti artists covered the exterior walls of the buildings with colorful graffiti art. In 2002, Jonathan Cohen, an aerosol artist, approached Wolkoff and offered to become the curator of any future works on the walls. Wolkoff agreed to the general bargain, though the specific terms of the agreement were in dispute in the court proceedings.

In 2013, Wolkoff announced plans to demolish the 5Pointz buildings to make way for luxury apartments. Twenty-one of the 5Pointz artists sued Wolkoff in Brooklyn federal court and asked for an injunction to prevent the destruction of the buildings and thus the destruction of their artwork.

Judge Block, however, denied an injunction protecting the art. A week later, Wolkoff had workers spray white paint over most of the graffiti pieces at 5Pointz.

5Pointz Wall

Following the destruction of the art, the artists amended their complaint to add tort claims for damages due to the willful and malicious destruction of their artwork in violation of copyright laws.

U.S. District Court Judge Frederick Block ruled in favor of the artists, holding that the graffiti art came under the protection of Visual Artists Rights Act of 1990 (“VARA”) that gives artists the right to prevent the destruction of their work if the work is one of “recognized stature.”

In 2017, a six-person jury heard the case in a trial that lasted three weeks. In an unusual move, just prior to summations, the plaintiffs, with defendants’ consent, waived their jury rights. Judge Block converted the jury into an advisory jury rather than dismissing it, recognizing their work and efforts during those three weeks. The jury found Wolkoff liable for violating the artists’ rights under VARA and that his actions were willful. The jury also recommended damages for each work of art which is set at $545,750 in actual damages and $651,750 in statutory damages.

Following the jury verdict, on February 12, 2018, Judge Block increased the award of damages to $6.75 million, the maximum statutory damages under VARA. Judge Block adopted some of the jury’s findings and recommendations, including findings that Wolkoff was liable and acted willfully. Judge Block found that 37 works achieved recognized stature by virtue of their selection by Cohen to be displayed in the highly coveted spaces in 5Pointz. Eight other recent works or works not directly displayed on the 5Pointz walls were also found to achieve recognized stature. Four works of art were found not to have achieved recognized stature and were not included in the damages calculation.

Judge Block awarded statutory damages rather than actual damages. Statutory damages may be awarded when no actual damages are proven or they are difficult to calculate. Judge Block found that the plaintiffs failed to establish a reliable market value of their works, but, under VARA, damages might still be awarded as much as $150,000 per work if the destruction was willful.

White paint over 5Pointz walls. Photo Credit: Hans Von Rittern

Judge Block agreed with the jury that Wolkoff had acted willfully. Wolkoff could have waited to destroy 5Pointz for the ten months it took to obtain his building permits. Both the public and artists could have benefitted from having the ten months to view, say goodbye to, and honor the artists and their works of art. Wolkoff’s actions denied them of this. Judge Block characterized Wolkoff’s behavior as an “act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art.” This, Judge Block said, was the “epitome of willfulness.” If Wolkoff had waited for ten months, Judge Block said he would not have found that Wolkoff acted willfully.

Judge Block awarded $150,000 for each of the 45 works of art, for a total of $6,750,000 in statutory damages. Wolkoff plans to appeal the decision.

Cohen v. G&M Realty L.P., No. 13-CV-05612(FB)(RLM), 2018 U.S. Dist. LEXIS 22662 (E.D.N.Y. Feb. 12, 2018).

By: Dorichel Rodriguez (Dorichel is the CityLaw Fellow and New York Law School Graduate, Class of 2017).

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