The Making of the Moral Rights Case: The Factual and Legal Background of the 5Pointz Trial

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[Observing 5Pointz Trial], courtroom art by Elizabeth Williams (Nov. 3, 2017).

By Laura B. Richardson*

 

5Pointz, the world renowned “graffiti mecca” as it was once known, has become the subject of a legal battle which has culminated in a jury trial in the Eastern District of New York. Cohen v. G&M Realty L.P., 2017 U.S. Dist. LEXIS 50943 is a case brought by twenty-one graffiti artist plaintiffs against the defendant property owners of the 5Pointz buildings, for the destruction of 49 aerosol artworks (numbers of plaintiff-artists and works have been changing between 2013 and 2017). The artists are suing for infringement of their rights under the Visual Artists Rights Act 1990 (“VARA”), 17 U.S.C. § 106A, which protects rights of living artists whose visual art works are of recognized stature.

Background

In 1971, Jerry Wolkoff, a real estate developer from Brooklyn who started his own residential development company in his late teens, purchased an industrial complex in a “gritty” industrial neighborhood at 45–46 Davis Street, Long Island City, Queens, New York. The property extended across a 200,000 square-foot factory complex. Twenty years later, Wolkoff authorized the site to become the “Phun Phactory,” where graffiti artists were permitted to paint on the walls. The Phun Phactory was an effort by Pat DiLillo in the early 1990s to discourage illegal graffiti vandalism and create a legal space for local street artists to execute and display their work. 

In 2002, Jonathan Cohen (known by his tag name “Meres One”), a graffiti artist born in 1973 in the South Bronx and raised in Queens, New York, met with Wolkoff and offered to curate urban a.k.a. aerosol a.k.a graffiti works at the Queens complex. He proceeded to rename and develop the site, now known as 5Pointz, into an artistic hub. According to Cohen, Wolkoff welcomed graffiti art on his property with three rules: no pornography, no religion, and no politics to be painted at the site. Cohen was also aware that Wolkoff would one day develop the property, and that the buildings, and the paintings on their walls, would become history.

With Cohen’s curation, both the quality of artwork at 5Pointz and 5Pointz’s reputation grew significantly until it reached the level of an internationally celebrated open-air aerosol art exhibition. Between 2002 and 2013, numerous tourists and aerosol artists from all over the world visited 5Pointz to witness and paint at the iconic venue. With the increased tourism and artistic community presence, the surrounding neighborhood improved considerably.

“Save 5Pointz”

In the wake of a real estate boom in Long Island City beginning in 2010, Wolkoff was ready to capitalize on the rising property value and indicated his intent to redevelop the 5Pointz site into high-rise apartment towers. On August 21, 2013, the City Planning Commission, the responsible body for urban planning related to the growth and development of New York City, issued the permit for the demolition of the 5Pointz buildings and for the rebuilding on the site of two towers containing 800 luxury rentals and 200 affordable units. The City Planning Commission did require, as a condition for issuing the building permit, that the new residential complex include 3,300 square feet of exterior art panels “to be used to maintain artist street wall art in the area.”

In the petition filed on October 10, 2013, seventeen graffiti artists, including Cohen, sought to enjoin the demolition and to preserve 5Pointz for street artists. In addition, artists filed requests for landmark status evaluation by the New York City Landmark Preservation Commission (the “Commission”). The Commission, created in 1965, is responsible for protecting and regulating New York City’s architecturally, historically, and culturally significant buildings and sites. On August 20, 2013, it denied the request to designate 5Pointz as a landmark because the feature of interest—the artwork—had not been in existence for at least thirty years. Cohen also sought funding to acquire the 5Pointz site in order to “create the first aerosol art museum in the world” (Jonathan Cohen Direct Examination October 30, 2017).

Street Artists Go to Court

On October 10, 2013, artists, represented by Jeannine Leigh Widmer Chanes, sought a federal court order to preliminarily enjoin the destruction of the buildings, invoking their Visual Artists Rights Act 1990 (VARA) rights. On October 17, 2013, the Eastern District Court issued a temporary restraining order against the property owner, enjoining Wolkoff from altering the building in any way whilst the Court considered the plaintiffs’ motion. On November 12, 2013 the Court lifted the restraining order and denied the plaintiffs’ request for preliminary injunctive relief. Judge Block indicated that a written opinion would follow, and on November 20, his opinion explained that going to the issues of both irreparable harm and the balancing of the hardships, “the transient nature of the plaintiffs’ works” was the “ineluctable factor which preclude[d] either preliminary or permanent injunctive relief.”

Between November 12 and November 20, Wolkoff apparently denied artists access to 5Pointz and on November 19, he ordered 5Pointz whitewashed overnight, without any notification to the artists. In his deposition on Friday, November 3, 2017 Wolkoff admitted that he hired and paid in cash a crew of painters, who began covering 5Pointz with white (and blue and black) paint at 4 a.m.. Some of the murals were covered in their entirety, while others were partially obscured by whitewash, with ghosts of the mutilated art peeping from under the quick job of reclaiming 5Pointz by its legal owner. The compound structures were not actually demolished until months later in August 2014.

The artists subsequently sued, seeking damages for the destruction of visual works of art at 5Pointz, in violation of their rights under the Visual Artists Rights Act 1990.

In the defense’s opening statement on October 17th of the inaugural jury truly to hear a VARA case, Wolkoff’s attorneys characterized the whitewashing as a humanitarian act, “ripping off the Band-Aid” and covering the works so as to save the artists from the distress of seeing their art sit on the walls waiting for demolition for several months.

Moving up in the World

Graffiti and aerosol art has rapidly evolved from a type of illicit activity in its formative years to a hip and popular contemporary form of visual expression, legitimized both by the aesthetics and skills of the artists as well as the art market forces that have voted with increasing sales and popularity of this form of art. Street artists have been recognized by gallery owners and goers, with an increased number of exhibitions, as well as increased instances of infringements against street artists on behalf of fashion designers and corporations (McDonalds, Cavalli, Vince).

The 5Pointz case is important for its symbolism, where artists who have “street cred” and undeniable talent, are testing the limits of the established order separating the rarified world of “high art” from the fringe, which is likely to be relevant to the great “cross-section of society” referenced in the formulated legal language.

Moral rights of artists did not come naturally to the American jurisprudence. The Visual Artists Rights Act 1990, 17 U.S.C. § 106A (“VARA”) was enacted in response to the United States’ accession to the 1886 Berne Convention, which requires that member states protect copyright authors’ numerous moral rights. (Berne Convention for the Protection of Literary and Artistic Works, 1886, Article 6bis (1)). VARA grants the author of a “work of visual art” only the right to paternity and to prevent intentional distortion, mutilation or other modification of the work that would be prejudicial to their reputation; and, in the case of works of “recognized stature,” the right to prevent their destruction (17 U.S.C. §106A(a)).

One of the main issues, and indeed a deciding factor, in the pending 5Pointz case is whether the graffiti art murals are of “recognized stature”. This is a high bar to reach for a form of art born on the streets of poor urban neighborhoods and practiced predominantly by first and second generation immigrants. There has been relatively little case law on the statutory interpretation and application, but the standard for “recognized stature” that has been formulated and applied by the 2nd and 7th Circuit courts in previous cases has required: 

“(1) that the visual art in question has “stature,” i.e. is viewed as meritorious, and

(2) that this stature is “recognized” by art experts, other members of the artistic community, or by some cross-section of society.”

(Martin v. City of Indianapolis 192 F.3d 608 (7th Cir. 1999)); (Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994) affirmed in part, vacated in part, reversed in part, 71 F.3d 77 (2d Cir. 1995)).

This case, having survived multiple motions for dismissal, has entered its trial stage on October 17th, 2017 before Senior District Judge Frederick Block at the Eastern District of New York Federal Courthouse in Brooklyn. With no precedent to follow, the case has been characterized by the Judge as “an odd ball cup of tea,” and it is uncertain whether the works of aerosol art will meet the standard of recognized stature required for a successful VARA claim. Years ago, in the early days of graffiti, which was regarded as mere vandalism or tagging, there likely would not have been a viable legal argument that graffiti could be a work of visual art of recognized stature. Just as the 5Pointz venue did, the 5Pointz case demonstrates the progress and evolution of graffiti into an established and legitimate form of art that requires vast technical skill and has aesthetic and cultural merit.

Regardless of the outcome, this case is a cautionary tale for artists as well as real property owners who permit graffiti art on their property to contemplate moral rights waivers as a safeguard against similar litigations. Given that the United States does not afford robust moral rights protections, VARA rights can be waived.

Closing arguments and jury instructions are scheduled for November 6, 2017.

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5Pointz Chronology

1971– Jerry Wolkoff purchases property at 45–46 Davis Street Long Island City, Queens, New York.

1993 – The site is established as the “Phun Phactory” and Wolkoff grants artists permission to paint on building.

2002 – Jonathan Cohen becomes curator of 5Pointz.

2002-2013 – 5Pointz becomes internationally recognized “open air aerosol art museum” and “mecca of graffiti art” as top street artists flock to New York to paint at 5Pointz and tourists visit from all over the world to experience the murals at 5Pointz.

2010 – Real estate boom and sharp increase in property value in the Long Island City area.

August 21, 2013  New York City Landmark Preservation Commission denies granting 5Pointz landmark status.

August 21, 2013 – The City Planning Commission issues building permit authorizing the destruction of the 5Pointz buildings and the building of two-high rise towers containing 800 luxury rentals and more than 200 affordable units.

October 10, 2013 – Plaintiffs file complaint and motion for preliminary injunction to prevent the destruction of the premises, invoking their VARA rights.

October 17, 2013 – Court issues a temporary restraining order against the property owner.

November 12, 2013 – Court issues an order denying plaintiffs’ request for preliminary injunctive relief to prevent the destruction of their paintings.

November 19, 2013 – Whitewashing of building occurs overnight.

June 17, 2014 – Plaintiffs file the Cohen Complaint. In it, four claims are pled: (1) VARA, (2) intentional infliction of emotional distress (“IIED”), (3) conversion, and (4) property damage. 

August 2014– Demolition of whitewashed 5Pointz buildings.

June 3, 2015 – Maria Castillo and other artists (“Castillo Plaintiffs”) initiate a separate lawsuit against the defendants (“Castillo Matter”). As in Cohen, the Castillo Plaintiffs adduce the same four claims in their pleadings.

October 17, 2017 – Trial begins in Federal court, J. Block presiding.

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*About the Author: Laura B. Richardson is serving as the Fall 2017 Postgraduate Legal Fellow with the Center for Art Law. She obtained her LLB from King’s College London in 2016 and is currently an LLM candidate at NYU School of Law with a specialization in Competition, Innovation and Information Law. She can be reached at lbr312@nyu.edu

 

VARA, Back to the Rescue of Public Art in NYC

By Irina Tarsis, Esq.

Case Preview: Johnson’s Paintings Go Missing from Empire State Building

Between 1999 and 2000, a New York artist Kysa Johnson was commissioned to create and loan a series of art works for display at the Empire State Building. The six works that used to adorn the concourse level of the historic skyscraper apparently “represented the atomic or molecular structure of the materials — brick, steel, cement, aluminum — used in the skyscraper’s construction.” Now, 14 years later, Johnson’s paintings have disappeared from display and are presumed destroyed.

Blow up 250, by Kysa Johnson

Blow up 250, by Kysa Johnson (Halsey McKay Gallery)

Having learned that the paintings went missing, Johnson, currently exhibited at the Halsey McKay Gallery through March 1, 2014, brought a copyright infringement suit against the current owners of Empire State Building alleging violation of her moral rights, under the 1990 Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. This section of the Copyright Law deals with artists’ rights of attribution and integrity of their works. It was designed “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [artist’s] honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right” (emphasis added).

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Johnson Complaint Exhibit, “blow up 12 – aluminum”

Johnson filed a complaint against the current owner of Empire State Building alleging “intentional or grossly negligent destruction of the paintings” which damages “her honor and reputation as an artist.” She seeks damages for “the destruction of the significant and important works of art that were her property.” Johnson asserts that her paintings, “blow up 8 – subatomic decay patterns,” “blow up 9 – the formation of steel” “blow up 10 – cement” and others are of recognized stature because they were shown at an “opening party” attended by a hundred of visitors in September 2000 and they have been subsequently enjoyed by the countless Empire State Building visitors.

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Johnson Complaint Exhibit – “blow up 13 – bricks”

Johnson is represented by Andrew N. Bourne. She is seeking compensatory and consequential damages.

Source: New York Times; Complaint, Johnson v. Empire State Realty Trust, Inc, 1:14-cv-00487-PAC (Jan. 27, 2014)

Roseman’s “Curtain Wall” might  come down at J.F.K. Airport

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In 2001, John F. Kennedy Airport (the Airport) unveiled its newest art installation, the “Curtain Wall” by Harry Roseman. Made up of 50+ sculptures depicting clouds or curtains, the installation was located in Terminal 4, where it has been greeting travelers for 13 years. Now the airport is considering renovations of the corridor that displays “Curtain Wall” and once the installation is taken down, there may be no room for it in the renovated space.

Apparently Roseman has been offered to take his work back but he would rather have “Curtain Wall” remain on display at the Airport. This situation, still in its development stages, brings to mind another artist’s successful efforts to protect her sculpture from removal from Terminal 1 at the John F. Kennedy. Having brought a case against the Terminal One Group Association under VARA, Alice Aycock was able to keep her “Star Sifter” in the reconfigured space and on display.

Source: New York Times; Aycock et al v. Terminal One Group Association, L.P. et al, 12-cv-03173-RWS, (SDNY, March 11, 2013).

About the Author: 

Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law.  She may be reached at itsartlaw@gmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Case Preview: Lonny Marrow v. Jacob Javits Center, et al.

‘One’ is a beginning and ‘two’ is forever, at least according to Lonny Marrow, an artist known as Phase 2, whose work Misconception of the A until recently decorated the Jacob Javits Convention Center in New York. The work is nowhere to be found, hence the following suit.

* * *

According to the facts alleged in a complaint filed in New York Federal District Court (S.D.N.Y.) on November 6, 2013, plaintiff, Lonny Marrow’s sculpture was “disposed” of after remaining in the Jacob Javits Convention Center (the “Javits Center”) for over twenty years.  Marrow entered into a verbal agreement with defendant, Douglas Abdell sometime in 1983 to collaborate on a sculpture entitled, Misconception of the A. The two agreed to do so at the suggestion of a gallery owner, Joe LaPlaca, who represented both artists at the time.  The sculpture was completed at some point in 1984 and was exhibited at the Gallozzi-LaPlaca Gallery from 1984 until 1988.  According to the complaint, LaPlaca funded the construction of the sculpture entitling him to a proportionate interest in the profit of the sculpture should it ever be sold.  Subsequently, in 1988, LaPlaca transferred his ownership interest of the sculpture back to Marrow, through an oral and written agreement, in order to satisfy an outstanding debt he had with Marrow.

Shortly after, one of the co-defendants, Hugo Martinez, was assigned the right to sell the piece, as well as receive a twenty-five percent commission.  He had the sculpture moved to the Jacob Javits Convention Center in 1988 where it remained on permanent display for over twenty years.  Marrow understood the piece to be on loan to the Javits Center. Throughout that time, Marrow regularly invited collectors and friends to the Javits Center to see the piece.  Around July 2013, Marrow’s friend, Ronnie Yarboro, wished to see the sculpture and called the Javits Center to make sure it was on display.  The Javits Center’s operations manager, Carola Henderson, informed Yarboro that the sculpture had been moved six months prior due to renovations.  When Marrow became aware of this, his counsel contacted the Javits Center regarding the sculpture’s whereabouts.  In response, counsel for the Javits Center advised Marrow’s counsel that they had “disposed” of the sculpture because Marrow’s ownership interest was forfeited through abandonment.[i]

Marrow commenced an action seeking (1) a declaratory judgment as to his ownership interest in the sculpture to be at fifty-two and a half percent pursuant to the written agreement between Marrow, Abdell and Martinez, (2) declaratory judgment as to his fifty-two and a half percent co-ownership interest of all copyrights in and to the sculpture, (3) conversion for wrongful deprivation of his property seeking damages for $250,000, and (4) violation of his rights under the Visual Artists Rights Act (“VARA”).[ii]

Claims made under the VARA are particularly interesting.  VARA provides for greater copyright protections to artists.  However, it only covers “visual art”, defined under 17 USC § 101 as “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer . . . or a still photographic image produced for exhibition purposes only, existing in a single copy . . . or in a limited edition of 200 copies or fewer.”  VARA gives the author of these works certain exclusive rights even once the author has transferred his property interest in the piece.  These rights include the § 106A (a) right of attribution (the right to have author’s name credited with his work and the right to not have the author’s name associated with a work he did not create) and the § 106A (a) right of integrity (the author’s right to prevent distortion, mutilation or other modification of a visual work that would prejudice the author’s reputation and the right to prevent any intentional or grossly negligent destruction of a work of recognized stature).[iii]

An important distinction to note is the difference between works made for hire which are not protected under VARA and works created by independent contractors which are afforded protection under VARA. (See Carter v. Helmsley-Spear, 71 F.3d 77 (2d. Cir. 1995) (holding that a multifactor balancing test is necessary to determine whether a work is a work for hire or independently contracted)).  In Carter, the 2nd Circuit looked to “the right to control the manner and means of production; requisite skill; provision of employee benefits; tax treatment of the hired party; [and] whether the hired party may be assigned additional projects.”[iv]  Here, from looking at the complaint, it appears that Marrow’s artistic freedom was not constrained in any way, a factor that militates towards categorizing the piece as independently contracted.  Marrow was an artist with great skill, suggesting the work is independently contracted.  Nothing in the complaint speaks to any employee benefits or Marrow’s tax treatment.  There is nothing in the complaint to suggest that this was anything more than a singular piece executed at the suggestion of LaPlace and funded by him, furthermore LaPlaca did not intend to hold onto the rights of the statue (any interest LaPlaca had was expressly assigned to Marrow pursuant to the 1988 written agreement).  Therefore it is likely that the work is independently contracted and entitled to VARA protection.

As for the Javits Center abandonment defense, even if the Marrow is deemed to have “abandoned” the sculpture, he is still entitled to protection under VARA (unless he expressly waived it).  The question in this case will hinge on the Marrow’s right of integrity.  Since it is unclear from the complaint what exactly happened to the sculpture, evidence will need to come out at trial that shows the defendant destroyed or otherwise mutilated the work in a way that prejudiced his reputation.  A note from the legal counsel for the Javits Center dated September 6, 2013, included in the complaint, states without much detail that the Javits Center “had no choice but to dispose of [the sculpture]”.  If this is the case, Marrow is likely to succeed on his VARA claim.  On the other hand, there seems to be little question of whether or not the statue is a work of “recognized stature”, which requires determining whether the artist is, among many other factors, well-known, highly acclaimed by experts in the field, and possess artistic merit.  Better known as Phase 2, Marrow is a founding father of the graffiti movement, and therefore is likely to posses the necessary attributes to prevail in his suit.

More about and from Phase2 available here.

Sources:

[i] Complaint: Lonny Marrow v. Jacob Javits Center, et al. (S.D.N.Y. 2013) (No. 13 Civ. 7902).

[ii] Id., 17 U.S.C. 106A.

[iii] 17 U.S.C. 106A.

[iv] Carter v. Helmsley-Spear, 71 F.3d 77, 86 (2d Cir. 1995) (quoting Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir. 1992)).

Federal Judge Issues Restraining Order To Delay Destruction of Public Art at JFK Airport

Yesterday, U.S. District Judge Robert W. Sweet issued a restraining order against the Terminal 1 Group Association, temporarily halting their plan to destroy artist Alice Aycock’s sculptural public work “Star Sifter” to make way for a new food stands at JFK Airport. Installed in 1998, Aycock’s “Star Sifter” has been a fixture at JFK for over ten years. When the Terminal 1 Group Association told the artist and School of Visual Arts professor that they would be destroying her statue, she immediately sued, claiming that the removal of her work constituted breach of contract.

The original commission stated that “Star Shifter” would not be removed unless is it was “required or necessary to do so.” Aycock’s attorneys stated that these circumstances certainly do not qualify. Further, the piece also performs a safety function, serving as a net between the mezzanine from the departure area beyond the security checkpoint.

Aycock is a respected and well-established member of the national artistic community. She has created thirty-two public works, including pieces at other airports and suspended sculptures for the Sacramento Convention Center in California and the Rowland State Government Center in Waterbury, Connecticut. Additionally, MoMA, the Whitney, and the Brooklyn Museum all have Aycock’s works in their collections.

About the situation, Aycock commented that other airports that display her work have consulted her when they want to change the space, informing her in advance and working to preserve and reinstall the work. Distinguishing the behavior of these airports from that of JFK, Aycock told the New York Times, “They prioritize the work of art.”

The hearing to decide on a final injunction against destroying Aycock’s work will take place on Friday.

Read the full New York Times Article: At Kennedy Airport, an Artist Fights to Save Her Sculpture

VARA Claim for the Right of Paternity

David Ascalon, an Israeli-born sculptor living in Cherry Hill, N.J., create a Holocaust memorial in Harrisburg, Pa. after the Jewish Federation of Greater Harrisburg selected his design for the memorial in 1993.

In 2010, Ascalon sued the federation and the Harrisburg Department of Parks and Recreation in federal court in July under the Visual Artists’ Rights Act (VARA), 17 USC 106A, alleging that the federation hired a contractor to refurbish the monument and that the contractor removed Ascalon’s name off the sculpture. VARA allows creators of public display art to protect their works from alterations.

VARA provides:

(a) Rights of Attribution and Integrity.— . . . the author of a work of visual art— (1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

On February 7, 2011, the federation and Ascalon issued a joint statement saying that the federation will allow Ascalon to replace the stainless steel wire with rusty steel wire and put his name back on his sculpture.

Parts of the Joint Statement read:

SETTLEMENT REACHED IN CASE UNDER THE VISUAL ARTISTS RIGHTS ACT OF 1990 (VARA), ASCALON v. DEPARTMENT OF PARKS AND RECREATION, et al.

HARRISBURG, PA –In July 2010, the New Jersey artist David Ascalon filed an action in U.S. District Court for the Middle District of Pennsylvania asserting that his rights under the federal Visual Artists Rights Act of 1990 (VARA) had been violated with respect to a sculpture he created for the Jewish Federation of Greater Harrisburg: a Holocaust Memorial on the banks of the Susquehanna River in Pennsylvania’s state capital, which was installed in 1994.  The complaint alleged that Ascalon’s rights under VARA, which limits how an artwork may be altered or disposed of, were violated by restoration of a decaying element of the original sculpture in which a rust-colored “barbed wire” serpentine element was replaced with stainless steel.

The substance of the settlement provides the sculpture will be retrofitted in a manner that upholds the artist’s original intent at minimal costs to the defendants.  The original artist shall be provided access to the sculpture to remake the “barbed wire” serpentine element in a highly durable rust-colored steel, and the original artist’s name shall be restored to the sculpture.  The parties are pleased that future generations will be able to view the restored Memorial and remember and pay proper respect to the 12 million souls that perished at the hands of agents of intolerance, the Nazi Regime.

The attorney for David Ascalon is Jason B. Schaeffer, Esq. of J.B. Schaeffer Law, LLC of Cherry Hill, New Jersey.  The attorney for the Federation is Harvey Freedenberg of McNees Wallace & Nurick LLC of Harrisburg.