ASK THE ART LAWYER. 5 Pointz. The Evolution of a VARA Case

By Octavio Robles, AIA, Esq.

THE VISUAL ARTISTS RIGHTS ACT IN A NUTSHELL

The Visual Artists Rights Act (VARA) was enacted by Congress and signed into law by the first President Bush in 1990. The intent of the Act was to protect artists’ moral rights of attribution and integrity. Normally, an artist may create a work of art, sell it and retain copyright to the image. In such a typical case, the buyer owns the actual work of art and the artist owns the copyright, licensing rights and other “image” related rights. These, by no means, constitute an absolute bundle of rights over a work of art. Moral rights are rooted in spiritual, as opposed to economic theory. Moral rights cannot be sold or even licensed by the artist. It is a personal right that can only be claimed by the artist himself or group of artists where the work was a collaborative effort. It is the right to legally intervene when a work of art of ¨sufficient stature¨ is threatened with destruction, mutilation or alteration or where the action would affect the artist’s reputation. This is a very general description of rights created under VARA but sufficient to establish a foundation for this article in the context of the 5 Pointz case. A future full article on VARA will be forthcoming.

A TEARDOWN THAT BECAME A MUSEUM, A LITTLE BACKGROUND

The site that became known as 5 Pointz, or more explicitly, ¨The 5 Pointz Aerosol Arts Center¨, was a Mecca of street art and graffiti. The 2.9-acre property consisting of twelve buildings and located in Long Island City, New York was purchased by Jerry Wolkoff, a developer, in the early 1970s. It was originally a factory used for the manufacture of water meters when it was built in 1892. Although Mr. Wolkoff’s original intent in purchasing the property was to eventually tear down the buildings and develop it, his immediate plans changed and instead he subdivided and leased the spaces to smaller users. In the 1990s Wolkoff began to lease spaces for use as artists studios. At one point there were about 200 studios housed there. In the early 2000s he was approached by an artist who proposed that the buildings be used as a giant urban canvas for street artists. Wolkoff granted permission and with curator oversight to restrict gang-related graffiti, over time, street artists from around the world came and painted murals all over the walls. The artist then named the site 5 Pointz. It is particularly important to note the distinction that permission to paint the murals was granted by the owner because street art upon private property without permission from the owner can be considered vandalism and therefore illegal on its face. Later that decade, the buildings were cited as unsafe due to an accident and the discovery of countless improvements done without permits. Consequently, the site was forced to be vacated and new plans for development emerged.

View of the front of 5 Pointz in Queens, NY, January 20, 2013. Photo: Ezmosis. Source: Wikimedia Commons.

DEMOLITION PLANS AND THE RUSH TO PROTECT THE “MUSEUM”

As the Wolkoff family began to gear up to demolish and redevelop the site, efforts began by the art community to save the buildings. The Wolkoffs stood by their claim that granting permission to paint the murals was based on the clear understanding that it would be on a temporary basis until the property would ultimately be demolished. Soon thereafter, an artist group sought an injunction in Federal Court to stop the demolition. In the petition, the artist group asked the court to find that the art was of “sufficient stature” and thereby fall under the protection of VARA. The court denied the injunction because it could not determine if in fact the art met the sufficient stature standard and allowed the redevelopment project to continue. At about the same time, the New York City Landmarks Preservation Commission determined that the buildings containing the art did not qualify to be designated as a landmark because the value was in the art, not the buildings and the art was less than 30 years old. The new project went on to be approved by the city council and soon thereafter, the Wolkoffs had the buildings whitewashed thereby destroying all the murals.

THE CASE WENT ON

The day after the buildings were whitewashed, a federal judge stated that the Wolkoffs could still face stiff damages awards to the 5 Pointz artists as a result of litigation if there was a finding that the art was of sufficient stature. About one year after the whitewashing, the entire site had been demolished and construction on the new project was preparing to break ground. The controversy escalated when Wolkoff announced that the new project would be named 5 Pointz. The artists felt insulted. The name was not able to be trademarked because of a similarity to another trademark. In mid-2017, a group of artists who had done murals at 5 Pointz filed a suit under VARA claiming that much of the art was protected under the Act and had been destroyed in violation of the Act. The issue went to a jury and in late 2017 it found in favor of the artists and recommended that the judge issue a verdict that the destruction of the art was in violation of VARA. The judge denounced the Wolkoffs for the destruction of the artwork and determined that 45 works were in fact of sufficient stature. The judge went on to award the plaintiff $6.75 million which is the equivalent of $150,000 per work of art. Without a clear mandate under VARA as to the determination of awards, the court used criteria used under the Copyright Act to arrive at the $150,000 figure.

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DETERMINATION THAT STREET ART MAY BE PROTECTED UNDER VARA

The most important issue resolved in the 5 Pointz case is that street art could be determined to be of sufficient stature to be protected under VARA. There are no clear determining factors but the groundwork has been laid. One factor to consider even where the street art is determined to be of sufficient statute is whether it was done with the permission of the property owner. Another factor is the standard of evidence used to persuade a determination of whether the art raises to the level of meriting protection. This case may have the unintended effect of discouraging property owners to have street art, murals and the like, painted on their properties. It likely will trigger a regular requirement by property owners to have the artists waive any rights they may have under VARA as a pre-condition to permission. If a waiver is granted by the artists, there would remain no legal mechanism by which to seek a determination of protection under VARA.

IT’S NOT OVER ‘TIL IT’S OVER

The Wolkoffs have indicated that the verdict will be appealed although no word has been said as to the basis of the appeal. The judge in the case has indicated that the reason for his extreme verdict was due to the willful and premature destruction of the art by whitewashing. The fact that the artists were not given an opportunity to remove the art or at the very least, properly photograph it for reproduction. The Wolkoffs contend that the artists knew it was a temporary project and that the whole thing is nonsense anyway because they had a right to build on their property and to do so, they had to tear down the old buildings. The question remains; wouldn’t acceptance of permission to paint on a temporary basis amount to a waiver of any future rights under VARA?

Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida and Federal Bars (Southern District of Florida). He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds masters’ degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.