5Pointz and VARA

A Triumph for the Legal System

Exterior of 5Pointz before whitewashing and destruction

There has been some renewed buzz about a group of graffiti artists being awarded $6.75 million in damages for the destruction of a warehouses displaying their graffiti, known as 5Pointz. While the buzz centers much on it being a victory for artists and a defeat of property owners, I see it as a exemplar for how well the US legal system can work. To understand why I say this one has to really know what happened. I have taken the time to do a deep dive into it and this is what I found.
Largely based on information provided in the Wikipedia entry for 5Pointz, I have summarized background information of the chain of events leading up to the successful lawsuit under the 1990 Visual Artists Rights Act (VARA):

• The warehouse where 5Pointz was located originally opened in the 1890’s was owned by Jerry Wolkof since the early 1970s. Starting in the 1990’s Wolkof started leasing the space to artists to provide space for legal graffiti work.
• In 2002, Jonathon Cohen, a graffiti artist obtained a deal with Wolkof to rename the warehouses to 5Pointz and took an active role in what could be painted on them. During the ensuing years, 5Pointz gained a reputation for being a mecca for graffiti artists and art.
• In 2009, the New York department Building cited the complex for safety violations and ordered the closing of one of the largest buildings.
• On October 9, 2013 Wolkof received final approval from New York City to redevelop the property into a mixed development including apartments, retail, a public park, and exhibit space for graffiti installations.
• Despite campaigns to save the complex and the filing of a lawsuit on November 16th to block the demolition, on November, 19, 2013 the exterior graffiti on the 5Pointz was whitewashed.
• On November 20, 2013, Brooklyn Federal Judge Frederic Block responded to the pre-emptory strike by stating that the whitewashing action completed prior to when and injunction could be issued exposed the owners to paying damages if a jury determined that the graffiti was of “recognized stature.” By the end of 2014 the complex was largely demolished.
• In April 2017, a group of artists with artwork on the 5Pointz sued for damages under the 1990 Visual Artists Rights Act.
• In November, 2017 a jury recommended a verdict that the destruction of the graffiti was illegal.
• In February 2018, based on the jury recommendation, Federal Judge Frederic Block awarded damaged of $6.7 million to 21 affected artists. Included in Judge Block’s opinion was a representation that the decision hinged on the wanton destruction of the artwork.
• In February 2020, under appeal the decision was upheld and in October 2020, the US Supreme Court declined to review the decision. This last action is what has renewed the social media interest.

To understand the basis of this lawsuit and the awarding of damages, the provisions of the 1990 Visual Artists Rights Act (VARA) need to be understood. The act amended US copyright law to delineate the legal rights that visual artists have over their work. As it applies to the 5Pointz judgement, I believe the follow provisions are salient (each [reference] indicates the section of Title 17, Chapter 1 of the U.S. Code:

• The author of a visual work of art shall have exclusive rights over the work including, inter alia, “to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work” [106A(a)(3)(B)].
• These rights “shall endure for a term consisting of the life of the author [106A(d)(1)]. This clearly excludes the wanton destruction of many of the statues of dead people that has occurred during 2020 from the auspices of VARA.
• The rights are nontransferable but the author can waive them. On joint works of art, any one author can waive the rights with respect to the entire work [106A(e)(1)].
• If the owner wants to remove a work of visual art that part of a building such that its removal would cause the destruction of the work of art, the owner must seek written consent of the author [113(d)(2)].
• In such a situation the author can either remove the work or pay for removal of the work within 90 days of receiving notice.
• If the owner unsuccessfully makes a diligent good faith effort to contact the author but is unsuccessful after 90 days, or the work is not removed the author’s rights are effectively waived [113(d)(2)].
• An owner may destroy “a building embodying an architectural work… without the consent of the author or copyright owner of the architectural work”…. [120(b)].

Based on the fact pattern and the law, it is my opinion that the courts’ decisions are totally warranted, with the following observations:

• While it may be arguable as to what a work of recognized stature is, in this case the answer was established by the jury. Because of the international prominence of 5Pointz, this aspect does little to benefit lesser works of art that might be considered works of recognized stature.
• As noted by Judge Block, the owner screwed up by painting over the graffiti instead of going through the process to provide the authors with 90 days to remove the graffiti. Any observation that it is impossible to remove graffiti without destroying it just highlights how badly the owner screwed up. If it was impossible then the owner could destroyed the building without any consents.
• Similarly, since the owner implicitly and explicitly consented to the graffiti, it is dubious that the judgement might benefit unauthorized graffiti, irrespective of its potential work of recognized stature.
• As a practical matter, it may behoof owners of public and private structures subject to graffiti to remove them before they might become works of recognized stature. Perhaps this is why many of Banksy’s works disappear so quickly.
• It would also behoof any owner, or public institution for that matter, to get proper consents and waivers before any permanent artwork is installed, particularly a site specific artwork.

In summary, I see this case not so much as a victory for graffiti artists but as a victory for the law. The law establishes rights for authors of visual works of arts yet balances them against the rights of property owners. The owner was punished for his apparent lack of judgement. I say apparent because he may have decided that the cost of such an action was outweighed by the financial loss that he would incur fighting the lawsuit filed just before the artwork was whitewashed. What more can you ask for in a democratic society?