In a first-of-its-kind jury trial that explored the question of whether graffiti is considered art, a jury found that a developer broke the law when he whitewashed works of street art adorning a complex of buildings in Queens and demolished the building.
Following a roughly three-week trial, a jury of four women and two men handed up an advisory ruling on Tuesday in which they said developer Gerald Wolkoff violated the Visual Artists Rights Act (VARA) when he whitewashed more than 350 pieces of street art at 5Pointz, a collection of five properties in Long Island City, Queens, that plaintiffs said was known as the “Mecca of the aerosol art world.”
The case is believed to be the first time a jury has weighed in on whether or not the protections under the VARA extend to street art, said Eric Baum of Eisenberg & Baum, who represented a group of artists whose works were curated at 5Pointz.
The ruling is being taken under advisement by U.S. District Judge Frederic Block of the Eastern District of New York, who presided over the case and who will issue his own ruling.
Wolkoff and his companies are represented by David Ebert and Mioko Tajika of Ingram Yuzek Gainen Carroll & Bertolotti. Ebert declined to comment on the ruling.
According to court papers, in 1993, Wolkoff began allowing graffiti artists to paint the walls of his properties, which housed deteriorating warehouses. In 2002, he gave Jonathan Cohen, the named plaintiff in the case, the authority to curate works at the site, which was located across the street from the Museum of Modern Art’s PS1 gallery.
Over the following years, graffiti came to be seen less as a public nuisance and became more accepted as mainstream art, and 5Pointz grew in prominence in the “aerosol art” world. At the same time, New York City began to see sharp increases in its population and the gentrification of once-undesirable neighborhoods like Long Island City.
Wolkoff eventually moved forward with plans to knock down 5Pointz to make way for two apartment buildings to house 1,000 new units.
In 2013, Block denied the artists’ request for a preliminary injunction and also denied relief under the VARA, finding that the artists failed to show that they would suffer irreparable harm if their works are destroyed, but also saying that the matter of whether or not the plaintiffs had the right to sue because their destroyed works had “recognized stature” is an issue that should be preserved for trial.
The plaintiffs filed an amended complaint in 2014 seeking damages for financial losses and damage to their reputations.
At trial, Baum said he was able to show jurors that Wolkoff’s property rights were “protected and preserved” while the intellectual property rights of his clients were “trampled on.” He said that Wolkoff had the ability of providing the artists with advance notice that their works would be whitewashed but opted not to do so.
“In our mind, they held the owner accountable for his cruel and malicious acts of whitewashing all of the artwork,” Baum said.
Barry Werbin, counsel to Herrick Feinstein who has been observing the case, said that if Block finds that the property owner willfully destroyed the artists’ works, under the VARA he could award statutory damages of up to $150,000 per work.
If there’s a lesson for property owners to be learned about the case to avoid liability, he said, it’s that they should obtain written VARA waivers from artists if the properties are playing host to the artists’’ works.
“This is certainly going to reverberate throughout the arts community and the property owner community and everybody will be the wiser for it,” he said.