A new VARA challenge, this time by graffiti artists

Photo by Rebecca Schear on flickr

Just a day before a New York district judge had given his approval on November 20th, a Long Island City property owner brought in a team of painters, not to decorate his buildings but to whitewash them, in advance of having them torn down. What they covered over was the work of other painters, a group of graffiti artists, or “aerosol artists” (as they refer to themselves) known collectively as 5Pointz, who had been creating designs over every inch of this group of rundown low-rise office buildings in Queens since 2002.

The 5Pointz artists had sought to stop the demolition through a lawsuit by claiming that their artwork was protected under the federal Visual Artists Rights Act, an amendment to the U.S. Copyright Law, and that its destruction would harm their honor and reputations. In his decision, the Judge Frederic Block said that although “the Court wished it had the power to preserve” the numerous graffiti images, the artists “knew that the buildings were coming down” and therefore could not have expected that their work would be permanent.

The district court decision ends the legal dispute that arose on October 10th when Jonathan Cohen, who uses the tag name Meres One and is the unofficial curator of 5Pointz, challenged the right of the property owner, Gerald Wolkoff, to tear down this group of buildings in Queens to make way for a 1,000-unit high rent apartment complex. The artist group sought a permanent injunction on the destruction of the buildings on which their art has been created. The artists claimed that, under the Visual Artists Rights Act, their work is of recognized stature (one of the requirements to bring a legal action) and that its destruction also would deny the artists the opportunity to earn income through licensing these images.

It was not disputed that since 1993 Wolkoff gave them permission “to use the interior and exterior walls…for works of art,” according to the lawsuit. In addition, the building owner provided the group with keys to the building, as well as “several secure spaces” in which they could store their paints, ladders and other supplies. The only restrictions that Wolkoff placed on their artwork were that images could not contain political messages, religious or pornographic imagery.

The group of buildings contain more than 350 works of art on interior and exterior walls.

Photo by Pelle Sten on flickr.

Photo by Pelle Sten on flickr.

Wolkoff did not pay the artists for their work and, according to the complaint, the building owner did not request that title or copyright to the spray painted images be transferred to him. In 2002, Cohen formed a nonprofit corporation, 5 Pointz Aerosol Art Center, and the site has been listed in scores of travel guides and visited by artists and tourists around the world.

The decorated buildings also have been featured in fashion advertising, music videos, television and film productions, according to the lawsuit.

The only exemptions from VARA are “works made for hire, when the artist is an employee, which wasn’t the case here, and if the artists signed a written waiver to their VARA rights, which they didn’t do,” said Roland Acevedo, the lawyer representing the 10 artists suing Wolkoff. He added that artworks may be protected under VARA even when there is no written commissioning agreement or exchange of money. “The landlord gave the artists permission to do their art, which isn’t being disputed.”

Among the legal questions to be resolved are whether or not the landlord had made any promises to the artists about how long their work would be displayed and if the artwork is believed to be of “recognized stature,” which is one of the qualifications for VARA protection of pieces planned for destruction. “Most courts hold a low bar to ‘recognition,’” according to Manhattan arts lawyer Sergio Sarmiento, “meaning that the work does not have to have been included in the Whitney Biennial or been written up in The New York Times.”

By Daniel Grant

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