Painting on a Borrowed Canvas: When Property Rights Collide with Art

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

5PointzWhile most artists take pride in creating and protecting their works, many graffiti artists remain necessarily (sometimes famously) anonymous, since their art may also constitute criminal vandalism.  In contrast to the classic image of the beleaguered shopkeeper scrubbing daily at illicit tags, however, some property owners condone and even patronize the aerosol artists who adorn their facades.  In that situation, the lack of a formal, written agreement addressing the parties’ rights at the outset can lead to costly and unnecessary disputes down the line, when property owners make decisions that upset the status quo.

5Pointz Background

One such patron is Gerald Wolkoff, who indirectly owns or controls five commercial and residential properties in Long Island City, known as 5Pointz.  According to the filings in Cohen et al v. G&M Realty L.P. et al, Wolkoff has allowed graffiti in and on the buildings of 5Pointz since the 1990s, and appointed one of the graffiti artists, “Meres One” (also, less dramatically, known as Jonathan Cohen), as the volunteer curator of 5Pointz about a decade ago.

Meres was tasked with selecting and monitoring the art at 5Pointz, subject to certain content guidelines established by Wolkoff.  None of the artists transferred their rights in their work to Wolkoff, and neither Meres, nor any of the artists, were paid for their work.  According to the complaint, however, having one’s work included at 5Pointz, the world’s “Graffiti Mecca,” is a prestigious accomplishment, recognized by the international art community.  Several of the artists have pending copyright registrations for their works.

Proposed Destruction of 5Pointz

This informal patronage relationship soured when Wolkoff announced plans to demolish 5Pointz to make way for a 1,000-unit apartment complex.  In early October, 2013, Wolkoff’s plans received the necessary approvals.

Almost immediately, the artists, fearing for the integrity and survival of their works, filed suit in the Eastern District of New York.  The Plaintiffs’ primary claim is under the Visual Artists Rights Act, which is designed to protect the “moral rights” of visual artists, in relation to their works.  Rights under VARA persist for the life of the artist.

Visual Artists Rights Act

Under VARA, an artist may protect a work of visual art from destruction if it is “of recognized stature,” and – if it is incorporated into a building in such a manner that removal would result in its destruction – the artist has not entered into a written agreement (referred to as a “VARA waiver”) with the building’s owner acknowledging and accepting the potential for destruction.  None of the 5Pointz artists signed VARA waivers.

Even if a work does not qualify as having “recognized stature,” VARA would still allow an artist the right to protect it against “intentional distortion, mutilation or other modification…which would be prejudicial to his or her honor or reputation.”  Plaintiffs’ complaint alleges that honor and reputation are at stake, but that argument was not repeated or developed in later briefings.

Motion for Temporary Restraining Order and Preliminary Injunction

Plaintiffs moved the court for a temporary restraining order and preliminary injunction to enjoin demolition (and pre-demolition activities) that would destroy their works, violating their rights under VARA and causing irreparable harm.  According to their motion, “Wolkoff has told Plaintiffs … [he] can do anything he wants because he’s rich.”

Wolkoff opposed the motion, explaining that the art at 5Pointz was constantly evolving, and each individual piece of art is expected to be covered by others in the future.  Moreover, Wolkoff claims he informed the artists from the start that 5Pointz would be redeveloped at some point in the future.  Since the art was always intended to be temporary, Wolkoff argues, no piece can meet the “recognized stature” requirement for VARA protection, and 5Pointz cannot merit protection as a whole because it fails to qualify as a single “work of visual art.”

Given the impermanent nature of the art, Wolkoff also alleges that its loss would be “dwarfed” by the hundreds of millions of dollars his project stands to lose if it is delayed.  Unsurprisingly, the Plaintiffs were unable to post a bond for anywhere near that amount.  Despite this discrepancy in the net worth of the parties, Wolkoff challenged the nefarious, Mr. Burns-like image the Plaintiffs attempted to paint of him by promising that his commitment to community art would continue at the new 5Pointz.

On October 17, the Court granted a temporary restraining order, which it extended on October 28, to allow time for an evidentiary hearing.  That hearing lasted for three days, from November 6 to 8.  On November 12, the Court dissolved the TRO, and denied the motion for preliminary injunction.  A written decision is still forthcoming.

Starting at 3AM on November 19, Wolkoff had 5Pointz whitewashed.  He says he did it prior to demolition to help the artists avoid the pain of watching the works destroyed bit by bit, and that he cried.  The artists say he was destroying evidence, and that they now plan to seek damages.

The Moral of the Story

If further developments merit discussion, we will update you here.  As things currently stand, this case is a cautionary tale for artists and property owners alike.  Suppose that the graffiti works of 5Pointz were never covered by new works, or that redevelopment of the property had not been expressly contemplated when they were created.  Given a slightly different fact pattern, the artists might have successfully blocked demolition.

If an artist and a property owner contemplate a piece of artwork that will be intrinsically connected to a building, it is in everyone’s best interest to actively address that fact before the art is created.  The parties could agree to a VARA waiver, find a way for the art to be detachable, or make the art a “work for hire,” in which case the artist would receive compensation, but VARA protections would not attach.  If the parties can’t agree on one of those options, it might be best for the artist to find a different canvas, and for the owner to find a different artist.  Otherwise, artists risk having to combat unexpected attempts to demolish their work, and property owners risk having their rights in their property limited for the duration of the artist’s life.

In visual arts, as in the Boy Scouts, it counts to be prepared.

Image courtesy of Nelson Minar.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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