Right of Integrity: 5Pointz, Works of “Recognized Stature,” and Assessment of Statutory Damages

In a highly significant case concerning works by aerosol artists, a New York federal court interpreted the meaning of “recognized stature” of works of art, a term which is not defined under VARA. Aside from addressing “recognized stature,” the court also established a benchmark for plaintiff culpability by assessing the maximum amount of statutory damages available. The final outcome of this case, which was decided by a unanimous Second Circuit in favor of the plaintiff artists in February 2020, affirming a New York district court, is expected to have far-reaching consequences beyond the category of aerosol art. In July 2020, the defendants filed a petition for a writ of certiorari before the US Supreme Court, which is pending as of this writing.

Background

For over a decade, aerosol artists, led by curator Jonathan Cohen (“Meres One”), were permitted to paint the façade of a derelict factory complex in Long Island City, transforming it into the world famous 5Pointz, aka the Institute of Higher Burnin’ or 5Pointz Aerosol Art Center. The property owner Jerry Wolkoff had purchased the 200,000 square foot industrial complex in 1971, with the idea that he would eventually develop the property. The artists were always aware that the building would one day be torn down but the parties did not sign a contract.

What ultimately became 5Pointz originated in the early 1990s as Phun Factory, a place where artists could legally paint on the walls of a dilapidated water meter factory owned by Wolkoff. During those years, there was no control over the artists who painted on the walls or the quality of the work, which was generally viewed by the public as graffiti. The neighborhood was crime-infested.

Then, in 2002, Wolkoff put Cohen in charge. Cohen and several other artists rented studio space in the warehouse buildings and collectively strove to improve conditions. Wolkoff recognized the merit of the work and approved of Cohen’s role as a volunteer curator. Cohen abided by Wolkoff’s three restrictions—“no pornography, no religious content, and nothing political,” and established his own set of norms for the creation and curation of the art.

The neighborhood crime rate dropped and the 5Pointz site became a major attraction, drawing thousands of daily visitors, including school groups, tourists, and weddings and was used as a site for television, music video, and film production.

By 2010, the neighborhood surrounding SPointz had become increasingly valuable and Wolkoff decided it was time to redevelop the site into high-rise residential towers. When plans to demolish the property and develop the residential project later emerged, and the New York City Landmarks Commission denied protection, a group of the artists, including Cohen, the named plaintiff, filed suit on October 10, 2013, seeking preliminary injunctive relief and alleging that the proposed destruction of the art would amount to a violation of VARA.⁴²

Cohen I

Following a hearing before Judge Frederic Block in 2013, the court issued an order denying the plaintiffs preliminary injunctive relief and stated that “a written opinion would soon be issued.” The court recognized the tension between the rights of artists under VARA and the rights of property owners, cautioning that “defendants are exposed to potentially significant monetary damages if it is ultimately determined after trial that the plaintiffs’ works were of ‘recognized stature’” under VARA.

During the eight-day period that it took the court to issue its written opinion, Wolkoff destroyed almost all the plaintiffs’ paintings by whitewashing them in the dead of night without warning and barring the artists access to their works.⁴⁴ By failing to give the artists ninety days’ written notice to remove and salvage their works integrated into a building, defendants violated section 113(d) of the Copyright Act. This willfully destructive act would eventually prove fatal to the defendants’ case and weigh heavily in the court’s ultimate assessment of statutory damages.

Thus, the court in Cohen I held that the plaintiffs’ works are protected under VARA as works of “visual art,” and that under 17 U.S.C. § 106A(a)(3)(B), VARA “gives the ‘author of visual art the right to sue to prevent the destruction of [the| work if it is one of “recognized stature.”” VARA also permits the artist to seek monetary damages under 17 U.S.C. § 106A(a)(3)(A) if the work is distorted, mutilated, or otherwise modified to the prejudice of the artist’s honor or reputation.