By: Elizabeth Nwabueze

Introduction

5Pointz Aerosol Art Center, more commonly known as “5Pointz,” was an outdoor mural space where street artists from around the world would paint authentic pieces on the walls of a 20,000-square-foot factory building.[1] After permitting the artists’ free reign over the then-blighted property in Long Island City developer Jerry Wolkoff planned on demolishing the building to make way for luxury condominiums in 2013.[2] Many artists protested Wolkoff’s plan, seeking to save the building. Wolkoff responded by whitewashing the building’s exterior murals in the middle of the night.[3]

On November 8, 2017, a six-person federal court jury found that Wolkoff  broke the law when he whitewashed the building.[4] Although this verdict has been celebrated in the artistic community, the jury decision will serve only as a recommendation to the case’s presiding judge, Frederick Block, who has yet to hand down a final verdict and assess whether any damages must be paid.[5] If the judge follows the jury’s recommendation, the legal remedies available for moral-rights violations could include $500 to $20,000 in damages per artwork.[6]

Brief History of 5 Pointz

Starting in 1970’s, graffiti took over to become a respected art form. The history of 5Pointz started around the same time in 1971, when Jerry Wolkoff decided to buy the old factory building in Long Island City. [7]In 1993, when Long Island City was beset by crime, Mr. Wolkoff allowed street artwork to be painted on the exterior of 5Pointz. Over the next two decades, the popularity of 5pointz grew exponentially.[8] Hundreds of artists came from all over the United States and the world to contribute their artwork to 5Pointz. The name “5Pointz” grew to signify both the five boroughs coming together as one, and also united street artists from across the world.

In 2013, as the real estate market continued to expand, more New Yorkers looked to Long Island City real estate. Mr. Wolkoff saw the change happening and wanted to replace the building with luxury condominiums.[9] He knew the artists were attached to the building. In fact, several artists brought suit to preserve their artworks, asserting a claim under the Visual Artists Rights Act (VARA) as well as “intentional infliction of emotional distress,” conversion, and property damage. [10] The cases were thrown out. [11]On November 19, 2013, under the cover of night, painters quietly blanketed much of the walls of 5Pointz with whitewash, erasing the work of hundreds and seemingly putting the final nail in the long battle between the building’s owners.[12]

5 Pointz Legal Battle

A group of artists brought another federal suit in U.S. District Court (insert location of court) in June of 2015, claiming that their work was protected under VARA, which provides for damages if the works are of a “recognized stature,” which is typically determined by expert witnesses. [13] The artists’ legal argument centered largely on whether Mr. Wolkoff should have given them 90 days notice, and, if he had done so, whether some of their works could have been removed or preserved.[14] This case pits developers’ property rights against artists’ ability to protect and preserve their work. [15]

On the plaintiffs’ side, attorney Eric Baum heavily focused on establishing the importance of the artists’ work.[16] He emphasized the time and effort the artists put into their murals, the impact 5Pointz had on the artists’ reputations, and the damage they suffered as a result of the whitewashing.[17] On the other end, the defense challenged the notion that the destruction of 5Pointz had a negative impact on the artists’ bottom lines.[18] He questioned whether a 5Pointz-embedded work could have actually been extracted and sold and also pointed out that 5Pointz artists routinely painted over one another’s work at the site.[19] Furthermore, one of the defenses’ stronger arguments is that the artists knew that 5Pointz site was temporary.[20]

Gentrified cities across the country have also faced similar issues presented in this case. In 2016, Katie Craig filed a lawsuit under VARA, seeking an injunction to bar a developer, which acquired the building the previous year, from destroying or altering an iconic Detroit mural.[21] Meanwhile, another artist named Monte S. Thrasher, filed a lawsuit over the destruction of his Los Angeles mural by the owners of a new bar.[22] Although a new mural was painted to promote a new bar that would occupy the space, Thrasher states that had he been notified, he could have moved his mural or documented it. [23] The outcome of the 5Pointz case could demonstrate whose property rights the court finds to be paramount.

After hearing the arguments, a Brooklyn jury found in favor of the artists. [insert footnote]However, the verdict against Mr. Wolkoff, will not be the final word in the case.[24] Instead, the judge presiding over the case will ultimately decide the lawsuit’s outcome.[25]

Conclusion

This case demonstrates that even when an owner decides to fulfill their will on their property, when it involves an authentic art piece precaution should be encouraged. The developer, in this case, could have prevented such a ruckus by obligating each artist to sign a VARA waiver or by giving notice to the artist allowing them to either relocate or document their work in some way. While the artists could made an agreement with Mr. Wolkoff, that required notice before removal.

In the end, even though the artists knew that 5Pointz was a temporary mecca, it is the bad faith effort used to deny community members, fans, and artists alike a proper farewell that may end up burning the developer in the end.

[1] 5Pointz NYC, https://5ptz.com (last visited Nov. 11, 2017).

[2] Alan Fruer, At Core of 5Pointz Trial: Is Graffiti Art Protected by Law?, N.Y. Times (Oct. 17, 2017), https://www.nytimes.com/2017/10/17/nyregion/at-core-of-5pointz-trial-is-graffiti-art-protected-by-law.html.

[3] Cara Buckley & Marc Santora, Night Falls, and 5Pointz, a Graffiti Mecca, Is Whited Out in Queens, NY, N.Y. Times (Nov. 19, 2013), https://www.nytimes.com/2013/11/20/nyregion/5pointz-a-graffiti-mecca-in-queens-is-wiped-clean-overnight.html.

[4] Eileen Kinsella, In a Surprise Verdict, Jury Says Developer Broke the Law by Whitewashing 5Pointz Graffiti Mecca, Artnet News (Nov. 8 2017), https://news.artnet.com/art-world/5pointz-graffiti-artists-verdict-1142822

[5] Id.

[6] Ephrat Livni, A Judge Is Poised To Decide Whether Graffiti Can Be Protected By Law, Quartz (Oct. 20 2017) https://qz.com/1107031/new-yorks-5pointz-graffiti-artists-are-suing-a-real-estate-developer-for-destroying-their-work/.

[7] Eli Anapur, The Legendary 5 Pointz: History and Legacy, Widewalls (Nov.16, 2017), https://www.widewalls.ch/5-pointz/.

[8] See supra note 2.

[9] Brian Boucher, 5Pointz Graffiti Artists Get Their Day in Court Over Destruction of Murals, Artnet News (Apr. 6,2017), https://news.artnet.com/art-world/5pointz-graffiti-artists-trial-destruction-murals-917669.

[10] Id.

[11] John Marzulli, 5Pointz graffiti mecca in Long Island City is likely doomed after judge says he won’t stop demolition, N.Y. Daily News (Nov. 8, 2013), https://www.nydailynews.com/new-york/queens/judge-set-demolition-5pointz-article-1.1511120.

[12] See Cara Buckley et al, supra note 3.

[13] See Fruer, supra note 2.

[14] Id.

[15] Zoe Rosenberg, Trial over 5Pointz graffiti whitewashing begins, Curbed N. Y. (Oct. 18, 2017), https://ny.curbed.com/2017/10/18/16495482/5pointz-graffiti-long-island-city-trial.

[16] Eileen Kinsella, Who Owns Graffiti, the Artists or the Developers? A Landmark Trial Over 5Pointz Considers This With Fresh Eyes, Artnet News (Oct. 20,2017), https://news.artnet.com/art-world/5pointz-lawsuit-could-be-a-key-test-of-artist-legal-rights-1121624

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Lee DeVito, Settlement reached in Detroit ‘Illuminated Mural’ dispute, Detroit Metro Times (Apr. 14, 2017), https://www.metrotimes.com/the-scene/archives/2017/04/14/settlement-reached-in-detroit-illuminated-mural-dispute.

[22] Bill Donahue, ‘Star Trek’ Artist Sues Over Destroyed LA Mural, Law 360 (Apr. 24, 2017), https://www.law360.com/articles/916349.

[23] Id.

[24] Jessica Meiselman, 5 Pointz Graffiti Artists Win Jury Verdict, but Judge’s Final Ruling Awaits, Artsy (Nov. 8, 2017), https://www.artsy.net/article/artsy-editorial-5-pointz-graffiti-artists-win-jury-verdict-judges-final-ruling-awaits.

[25] Id.