Lia Ehrlich is a J.D. Candidate, 2021 at NYU School of Law.
In February 2020, the Second Circuit Court of Appeals affirmed a surprising 2018 district court decision awarding aerosol artists $6.75 million in damages stemming from real estate developer Gerald Wolkoff’s decision to white-wash the graffiti-adorned walls of his infamous 5Pointz building in Queens, New York. The artists as well as the man who supervised and curated the images, Joseph Cohen, sued Wolkoff, alleging that the act, done without consent, warning, or an opportunity to remove and preserve the works, violated their moral rights under the Visual Artists Rights Act (VARA). The federal statutory scheme, implemented in 1990, aims to protect the integrity and attribution rights of artists and explicitly prohibits the intentional or grossly negligent destruction of visual art of “recognized stature” by anyone other than the artist. Although it has yet to be decided whether the outcome of similar VARA cases turn on the property owner’s initial consent, under the statute, it is irrelevant that either the art or the building it’s on are owned by someone else. Despite this provision, Wolkoff emphasized to the court that the agreement he had with the various artists was known by both parties to be a temporary arrangement. He also stressed that the impermanent nature of graffiti should disqualify the artworks from falling within VARA protection. Many developers and artists alike were stunned when, in February 2018, the district court issued an opinion concluding that the erasure of the 40 plus works of art constituted a breach of the artists’ rights under VARA. In his opinion, the judge stated that, despite their “ephemeral” nature, the images were of “recognized stature” and ultimately awarded the plaintiffs $150,000 per piece.
The case clearly highlights the tension between the rights of real estate developers who benefit from the presence of unique and culturally relevant graffiti on their properties and rights of the artists who craft these images. In awarding plaintiffs the maximum statutory damages, the district court weighed Wolkoff’s “insolence” and “willful” destruction of the images more heavily than the highly relevant fact that there was no established viable markets for the works. The decision to penalize Wolkoff so severely not only signaled to artists and developers alike that, while rarely invoked, judges are taking claims protected by VARA seriously; it also demonstrates a potential shift in the long-ingrained power dynamic between the two groups in which developers held the firm upper hand.
The opinions and the resulting artist empowerment are emblematic of a greater cultural change, marking a modern wave of acceptance of both street artists as well as the community and social values their work embodies. The courts highlighted the “egalitarian” nature of the 5Pointz community, with artists coming from a variety of geographical backgrounds and a wide range of artistic training. The district court also reasoned that the statutory text indicated that Congress clearly contemplated that temporary works would be protected through provisions such as a required 90 days’ written notice to allow artists time to salvage removable works—including those painted on the sides of buildings. The judge concluded that the graffiti in question met the required legal standard for “recognized stature.” In making this determination, the judge relied on “common sense and generally accepted standards of artistic community,” taking into consideration an analysis of the experts’ testimony, media attention garnered by the images and the artists’ blossoming careers. The Second Circuit expanded on this rationale, noting that works by famed street artists such as Banksy, which are subject to destruction through overpainting or, in the case of Girl with a Balloon, self-destruction, do not have diminished stature because of their temporary nature. Rather, the court stated that the “temporary quality of this work has only added to the recognition.” This reasoning signals a significant, novel movement towards embracing contemporary modes of art that don’t securely fit within the traditional definition of “high art” judges once favored.
In deciding that the graffiti images met the “recognized stature” requirement, the court has both expressly acknowledged the value of street art and implicitly solidified that this type of work should no longer be accompanied by the negative connotations of gang violence and crime. The messages of social strife, cultural oppression and calls to action often represented in street art are not something to be silenced through vandalism laws. Rather, the voices of these artists and communities they work in can and should be publicly expressed, heard, and embraced not only by fellow artists but also by the American people and, accordingly, its legal system.