5Pointz Graffiti Artists Hold on to Monetary Award, Appellate Court Rules

For 11 years, 5Pointz, a 200,000-square-foot warehouse in Long Island City, featured a total of 10,650 works created by both well-known and up-and-coming aerosol artists. The space met its end in 2013, however, when the owner of 5Pointz decided to knock down the warehouse and build luxury apartments on the site.

The artists responded by applying to have the site designated by the New York City Landmark Preservation Commission as a site of cultural significance. When these efforts fell short, the artists sued the building owner under the Visual Artists Rights Act (VARA) to prohibit the destruction of the site, and they secured a temporary restraining order (TRO). But when the TRO expired and the artists failed to obtain a preliminary injunction, the owner concealed the works and razed the building ten months later.

In 2018, after years of litigation, in a case of apparent first impression, the district court found that 45 of the works had achieved “recognized stature” under VARA, 17 U.S.C.A § 106A(a) and were thereby prohibited from being destroyed. The court awarded the artists a total of $6.75 million, the maximum amount of statutory damages allowed—$150,000 for each of the 45 works.

Late in February 2020, in a major victory for street artists, the Second Circuit affirmed the lower court’s decision. In affirming the lower court’s holding, the Second Circuit established an intelligible standard for what amounts to a work of “recognized stature” under VARA; The court stated 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.”

The court clarified that the lower court did not err in focusing on the location of the warehouse, noting that the site of a work is relevant in determining whether a work has achieved recognized stature. A certain location, “[such as the] Louvre or the Prado…may render the recognition and stature of a work beyond question.” Appearance at an organized site indicates that a work has been deemed, “meritorious by a curator and therefore is evidence of stature,” and, “when the curator is distinguished, his selection of the work is especially probative.”

On a policy level, the United States does not generally recognize moral rights. VARA is an exception, as it provides limited protection to works of art, but excludes posters, charts, technical drawings, diagrams, motion pictures, and other audiovisual works or copies of works of visual art. Additionally, VARA is subject to 17 U.S.C.A § 113(d) of the Copyright Act, which deals with certain visual works incorporated into a building. Under the statute, if a work can be removed from a building without causing damage, a building owner must make a “diligent, good-faith effort” to provide notice to the artist of the removal. If the artist does not remove the work within ninety days of receiving notice, the artist will be precluded from asserting a claim under VARA.

Interestingly, the defendant here could have saved millions of dollars in damages by merely providing the artists with notice of the removal and giving them ninety days to remove the works. In awarding maximum statutory damages to the plaintiffs, the district court judge called the site’s destruction, “an act of pure pique and revenge,” noting that the owner, “has been singularly unrepentant [and] [h]e was given multiple opportunities to admit the whitewashing was a mistake, show remorse.” The owner denied all of these chances.





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