5Pointz after it was whitewashed in 2013 (photo by Tiernan Morgan for Hyperallergic)
The lengthy legal drama surrounding a beloved graffiti spot has finally come to an end. Five years after a real estate developer painted over a beloved stretch of street art in Queens, New York, a federal judge has ruled that he must pay $6.7 million to 21 artists.
In November 2013, developer Jerry Wolkoff whitewashed their artworks at 5Pointz without notifying them. Today, Judge Frederic Block wrote in an opinion that Wolkoff — the owner of what was once the graffiti-covered 5Pointz warehouse, in the Long Island City neighborhood of Queens — acted willfully when he destroyed their art. Block affirmed a jury decision last November that Wolkoff violated the Visual Artists Rights Act of 1990 (VARA), which gives artists limited rights over paintings that they no longer own.
The final ruling sets a striking precedent for the protection of aerosol art, as a visual art form of recognized stature.
A page from the judge’s ruling, showing work by James Rocco (screenshot via PACER)
“The court’s decision is a victory not only for the artists in this case, but for artists all around the country,” the artists’ lawyer, Eric Baum, told Hyperallergic. “The rights of the aerosol artists have been completely vindicated. Aerosol art has been recognized as a fine art. The clear message is that art protected by federal law must be cherished and not destroyed. Anyone that violates the law will be held to account and punished for the destruction of the art.”
The court examined 45 artworks and awarded $150,000 for each work — the maximum award of statutory damages allowed under VARA. In his ruling, Block added that a smaller amount might have been appropriate, considering the difficulty of proving actual damages. But the court found Wolkoff’s conduct, both during the whitewashing and on the witness stand, problematic.
“If not for Wolkoff’s insolence, these damages would not have been assessed,” Block wrote. “If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.” Court documents describe Wolkoff as a “difficult witness” and note: “He frequently ignored or challenged instructions by the Court. He was argumentative and prone to tangents and non-responsive answers. Eliciting coherent testimony was a chore and was only achieved after the Court threatened to hold him in contempt.” (His lawyers did not immediately respond to requests for comment.)
Demolition of the 5Pointz warehouse, which Wolkoff replaced with a pair of luxury condominiums, began in August 2014. Nearly a year earlier, artists had attempted to impede the building’s destruction, but a federal court ruled against them. Under VARA, Wolkoff could have granted the plaintiffs 90 days notice to give them the opportunity to save their works, but he instead painted over 5pointz less than a week after the court’s decision.
Page from the judge’s ruling, showing work by Christian Cortes (screenshot via PACER)
While the new condos, as revealed last year, will carry the 5Pointz name and feature graffiti-inspired decor, one artist said that today’s ruling will help 5Pointz live on in other ways.
“The legacy of 5Pointz may be this ruling and the clear statement that aerosol art and public art are not disposable,” Jonathan “Meres One” Cohen, one of the plaintiffs, told Hyperallergic in an email. “The 21 plaintiffs believed in the law and stood up for our rights. We believed in the value of our art and we were heard.” Cohen, who served as de facto curator of 5Pointz and oversaw the site, will receive $1,325,000 in damages.
“The art adorning 5 Pointz is gone and can never be replaced, and the 7 train commute will never be the same,” Cohen said. “But Honorable Judge Block’s judgement is historical for generation of artists all around the country. 5 Pointz art was a true form of free speech, and this ruling honors this great American tradition of standing up for our rights.
“As the curator and creator of 5 Pointz I was honored to work with so many artists, and I am happy to see my art form recognized as true art.”
Update, 2/13, 6:10 pm: Wolkoff told PIX11 News that he plans to appeal the judge’s ruling.
Just wrong what our legal system has come to.
Fabulous to see arrogance and “insolance” around arts rights properly punished. What a great judgement for the USA. Congratulations!
While I am not a lawyer nor claim to be, I would argue ownership of building property as artistic surface/media and the right to said property not to be defaced, quality of work notwithstanding. Unless, the current owner also owned the property and/or at that time permission was granted to said artists. I do not see graffiti as protected. Paint on my car without my permission, etc. I own the canvas, for example. Even the Visual Artists Rights Act of 1990 (VARA) excludes “covering” as a work of visual art and Graffiti is defined as “Drawings that have been scribbled, scratched, or painted illicitly on a wall or other surface, often within public view.” Note the word “illicit,” which means “unlawful [or] forbidden.”
Also, as an artist, I would be bound to the truth of the event, not so much to the painting itself, where the medium is also the message and how that plays itself out pro or con to my initial argument. I believe the surface, using another person’s property, stealing, in effect, the wall upon which to produce my work assumes a temporary impression, a single performance for as long as it may last as understood and agreed to. Also, given I have now been exposed, I may be in danger of arrest and conviction for vandalism.
Still, I would argue under the circumstances given governmental suppression of free speech and economic warfare against the American People by the government and corporations, oligarchs, and dictators, etc., that the public sphere may now belong to The People, and where they have been so delegated as to be unable to express themselves due to disenfranchisement, they may now be granted permission by default to communicate what is “appreciated primarily or solely for their imaginative, aesthetic, or intellectual content.” See Declaration of Independence.
I totally agree with you on the idea that vandalism — regardless of how beautiful the artwork is, and how valuable it can be if it were on canvas, or commissioned to be on the building — should not be rewarded. This sets a bad pattern going forward.
I believe (based on local newspaper articles) that the owner gave at least some of the artists permission to paint on the building. Some of you may not realize that in the contemporary market, street art adds to the hipness, and therefore the price, of real estate, and Wolkoff and his kind may have welcomed this effect — they have certainly exploited it elsewhere. Other property owners may simply like having the work around for its color and liveliness. The painting may not have been illicit. Thus, if vandalism represents destruction of value, then, the 5Pointz paintings could not be considered vandalism.
However, I see one likely bad effect of the ruling: property owners are going to be unwilling to allow artists to use their property as artistic media, because they may get sued as a result. Even though I think the decision will easily be overturned on appeal, it’s probably going to be remembered by landlord and developer types for a long time. It may be a Pyrrhic victory for street artists.
Well this article author is clearly bending over for some artistic integrity. Regardless of the demolition permits. This was Private property. The graffiti in question wasn’t even considered art. These people shouldn’t be considered artists. This should have been the main argument in court. Where are their art degrees? Qualifications? These vandals and gang members paint over each others art every day and they don’t sue each other? But this is what you get when you have a minority neighborhood with a judge that has a moral quest to force someone to pay reparations. This is government corruption at its finest