Alexandra Weissfisch
Graffiti art plays a meaningful part in the art world. The graffiti art movement has relatively recently become widely accepted for its vibrant, stylistic, and creative nature. Nonetheless, graffiti artists continue to stand on uncertain grounds in the legal world, and tensions between graffiti and street art and property owners have become commonplace. These legal tensions have been somewhat eased by the Supreme Court’s recent rejection to hear the 5Pointz case.
G&M Realty is a real estate development company, started by the late Jerry Wolkoff, which owns a warehouse complex in Long Island City – which has come to be known as 5Pointz. In 2002, Wolkoff made an agreement with a famous graffiti artist, Jonathan Cohen that would allow him to organize and control the covering of the exteriors of 5Pointz with graffiti art. Over the next decade, several graffiti artists created works all over the site, and the area became an “internationally recognized graffiti center.”[1] A decade later, Wolkoff decided that the spot was ripe to convert into condos.[2] The graffiti artists submitted an application for a preliminary injunction, which was denied, and Wolkoff subsequently proceeded to whitewash the exterior of 5Pointz. Wolkoff destroyed all of the artworks overnight, without giving the artists any notice whatsoever, and therefore no time to preserve their artworks.[3] The enraged artists commenced action against G&M Realty in the United States District court for the Eastern District of New York in February 2018, seeking monetary relief under the Visual Artists Rights Act (VARA). The Court determined that the defendants had violated the plaintiffs’ rights afforded under VARA by wrongfully and willfully destroying their works of recognized stature, calling the developer’s destruction of the art “an act of pure pique and revenge.”[4] The Court awarded plaintiffs the maximum statutory damages under VARA for each of the 45 works of art destroyed in the combined sum of $6.75 million.[5]
VARA is a federal copyright law that grants protection for moral rights of artists. It provides authors of works of visual art the right to “prevent any intentional destruction, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation” and to “prevent any destruction of a work of recognized stature.”[6] Under § 113(d)(2) of VARA, if a work is removable without destroying, mutilating, distorting, or otherwise modifying it, VARA gives the artist the opportunity to salvage the work upon receipt of a 90 days' written notice from the building owner of the owner's “intended action affecting the work of visual art.”[7]
G&M Realty appealed the District Court decision, and the United States Court of Appeals for the Second Circuit considered the issue of whether the artworks were of “recognized stature” as required under VARA. Earlier this year, on February 21, the Second Circuit concluded that “a work is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.”[8] The Court upheld the District Court's holding, finding the destroyed 5Pointz graffiti to be of “recognized stature” and that the lower court did not abuse its discretion in awarding the artists $6.75 million.[9]
The 5Pointz litigation saga continued following the Appellate Court's decision, when G&M Realty decided to file a petition of certiorari with the Supreme Court in July 2020. G&M Realty’s argument on appeal was that VARA’s use of the undefined term, “recognized stature,” is unconstitutionally vague as it violates due process rights by failing to give individuals fair notice of what VARA prohibits.[10] Just earlier this month, on October 5th, the Supreme Court declined G&M Realty’s request to reconsider the ruling. In declining to hear the 5Pointz case, the Supreme Court solidified the graffiti artists’ victory in the landmark case and established that its precedent will stand.[11] The 5Pointz saga has finally been put to an end, with a major win for graffiti artists, whose rights have been solidified in this specific field.
[1]Richard Chused, Moral Rights: The Anti-Rebellion Graffiti Heritage of 5pointz, 41 Colum. J.L. & Arts 583, 585 (2018).
[2]Cohen v. G & M Realty L.P., 320 F. Supp. 3d 421, 433 (E.D.N.Y. 2018), aff'd sub nom. Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020), as amended (Feb. 21, 2020), cert. denied sub nom. G&M REALTY L.P., ET AL. v. CASTILLO, MARIA, ET AL., No. 20-66, 2020 WL 5883324 (U.S. Oct. 5, 2020).
[3]Id. at 434.
[4]Id. at 445.
[5]Id. at 428.
[6]17 U.S.C. § 106A(a)(3).
[7]17 U.S.C. §§ 113(d)(2)(A)–(B).
[8]Castillo v. G&M Realty L.P., 950 F.3d 155, 166 (2d Cir. 2020), as amended (Feb. 21, 2020), cert. denied sub nom. G&M REALTY L.P., ET AL. v. CASTILLO, MARIA, ET AL., No. 20-66, 2020 WL 5883324 (U.S. Oct. 5, 2020).
[9]Id. at 171.
[10]G&M REALTY L.P., et al., Petitioners, v. Maria CASTILLO, et al., Respondents., 2020 WL 4258684 (U.S.).
[11]Eileen Kinsella, Cementing a $6.8 Million Win for Artists, the US Supreme Court Declines to Hear the Landmark Case Over the Destruction of Graffiti Mecca 5Pointz, Artnet News, Oct. 7, 2020, https://news.artnet.com/art-world/supreme-court-declines-5pointz-appeal-1913903