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.

* * *

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.

* * *

*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

 

Copyrights: To Register or Not to Register, That is the Question

By Elizabeth Weber, Esq.*

Copyright protection is a cornerstone of intellectual property law for those who create expressive works. However, a startling number of artists do not register their copyrights with the U.S. Copyright Office for one reason or another, ranging from a lack of knowledge on how to go about registering a copyright or the unwillingness to register because a work is, technically, protected under copyright law the moment it is created. Whatever the underlying reason, those who do not register their copyrights are at a stark disadvantage for one main reason: an unregistered copyright holder, meaning the individual who owns the unregistered copyright, is precluded from suing an individual who infringes upon the work’s copyright in court. In short, only registered copyright holders may bring actions of copyright infringement against alleged infringers.

With this in mind, Center for Art Law believes that providing some basic information on copyrights and copyright law to our readers would prove beneficial. Please note that this article does not, in any way, shape, or form, constitute legal advice. If our readers have any questions about copyright law, we strongly urge them to consult an attorney.

A Bit of Background Information on U.S. Copyright Law

Modern copyright law stems from the United States Constitution. The Constitution granted Congress the power to issue both patent and copyright protection “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I § 8, cl. 8.

Copyright law aims to achieve two distinct goals: first, to provide authors the exclusive right to benefit from their creative works for a limited duration and, second, to stimulate the creative atmosphere by protecting works from unfettered widespread use. Thus, Congress incentivized the creation of artistic works by imbuing authors with the exclusive right to use and benefit from such works for a set period of time.

What is Copyrightable Subject Matter?

Modern copyright law is codified in Title 17 of the United States Code. 17 U.S.C. § 102 (a) states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression” and includes categories like literary, pictorial, and audiovisual works. Both published and unpublished works may qualify for copyright protection. Thus, so long as an artistic work is original and fixed in a tangible medium of expression, it may garner federal copyright protection.

The Code specifically precludes ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries from garnering copyright protection. 17 U.S.C. § 102 (b). However, the expression of these precluded subject matters may be protected in some limited circumstances.

Why Register A Copyright?

Once a copyright is infringed, the copyright holder may act to stop the infringer from exploiting the infringed copyright. The damages for infringement depend on whether the work was registered with the Copyright Office before any of the exclusive rights were violated. The amount of possible recovery ranges from $0.00, as actual damages may be nominal, to $150,000.00 per willful infringement if the copyright holder elects to seek statutory damages.  More detail about actual and statutory damages will be provided in the Remedies for Infringement: Actual Damages and Profits versus Statutory Damages section below.

A Copyright Basics Circular provided by the U. S. Copyright Office indicates that copyright registration provides the copyright holder with a number of advantages, including establishing a public record of the claimed copyright, which may dissuade potential infringers from unlawfully using the work; allowing the copyright holder to file a copyright infringement claim in court; establishing prima facie evidence of the copyright’s validity and of the facts set forth in the copyright certificate; and, “[i]f registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.”

Accordingly, registering a copyrighted work not only allows a copyright holder to sue an alleged infringer, but it also allows the copyright holder to seek statutory damages and attorney’s fees if the copyright holder registered the copyright within a certain time frame as discussed in 17 U.S.C. § 412. This may lead to a substantially higher damages award, which will be discussed in the Remedies for Infringement: Actual Damages and Profits versus Statutory Damages section below.

How to Register a Copyright

An application to register a copyright must contain three essential elements: 1) a completed application form; 2) a nonrefundable filing fee; and 3) a non-returnable deposit, which is a copy of the work being registered and deposited (hence the name) with the U.S. Copyright Office. These forms are available on the U.S. Copyright Office website. For reference, a step-by-step copyright registration guide is available on pages 7-12 of the Circular mentioned above.

Additionally, an applicant does not need a lawyer to register his or her copyright, so the applicant may fill out the requisite paperwork, send in the filing fee, and deposit a copy of the work with the U.S. Copyright Office at his or her own volition.

Copyright Infringement

A valid copyright issued by the U.S. Copyright Office provides the copyright holder with the exclusive right to use, reproduce, prepare derivative works, and perform the work publicly. If a third party infringes upon these rights and the copyright holder registered his or her copyright, the copyright holder may file a copyright infringement suit against the alleged infringer. The copyright holder may sue for injunctive relief, for the court to impound the infringing articles, and/or for damages stemming from the infringement.

Remedies for Infringement: Injunctive Relief and Impounding Infringing Works

If granted by the court, an injunction forces the infringing party to cease the infringing activities. Also, a copyright holder may move for or the court may order sua sponte the impounding of infringing works as the court deems reasonable. Finally, the copyright holder may seek either actual damages and any additional profits from the infringement or statutory damages.

Remedies for Infringement: Actual Damages and Profits versus Statutory Damages

A copyright infringer is liable for either 1) actual damages and profits stemming from the infringement or 2) statutory damages. A registered copyright holder is entitled to recover the actual damages suffered as a result of the infringement along with any additional profits gained from the infringement.

Alternatively, a registered copyright holder may elect, at any time before a final judgment is rendered, to recover statutory damages in lieu of actual damages and profits. Basically, statutory damages are set forth in the statute itself as opposed to being calculated based upon the harm suffered by the victim. In terms of copyright infringement, amounts vary for statutory damages from no less than $750.00 to no more than $30,000.00 per infringement as the court deems just.

Additionally, if the registered copyright owner proves (and the court finds) that the opposing party willfully infringed upon the copyright, the court may increase a statutory damages award to no more than $150,000.00 per infringement. Statutory damages awards are not always big money, though; if a registered copyright holder elects statutory damages and fails to prove willful infringement, the court may reduce the statutory damages award to no less than $200.00 per infringement.

Accordingly, the election of either actual damages and profits or statutory damages should be considered a strategic litigation decision. Registered copyright holders should consult with their attorneys and carefully consider the pros and cons of electing either set of damage awards.

Conclusion

There are certainly benefits derived from registering a copyrighted work. To summarize, in addition to allowing a copyright holder to file an infringement suit against an alleged infringer, registered copyright holders may also seek statutory damages and attorney’s fees depending upon when the holder registers the copyright – potentially leading to significantly higher damages awards.

However, artists should remember that simply because their works may be copied without permission, they need not take action. There is no requirement to enforce one’s copyright and there may be quantifiable benefits in seeing one’s work appear in another’s creative expression. While it is a good idea to consult an attorney with intellectual property questions and to protect one’s exclusive rights, the ultimate decision regarding these rights is open-ended and subject to the copyright holder’s interpretation.

Sources:

*About the Author: Elizabeth Weber is a lawyer living in Brooklyn, NY.  She graduated from the University of Florida Levin College of Law where she received her certificate in Intellectual Property Law and served as an active member of the Art Law Society and the Journal of Technology Law and Policy. She is the Spring 2016 Postgraduate Fellow with the Center for Art Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Instead, readers should seek an attorney.

The NYC Art World Surveys Damage And Makes Predictions Following the Devastation Caused By Hurricane Sandy

In the wake of the unprecedented destruction caused by Hurricane Sandy earlier this week, the art dealers, gallerists, and museum professionals of New York City survey the damage done. From Chelsea to Greenpoint, and DUMBO to the Lower East Side, the art world is grappling with destroyed artworks and wrecked office and exhibition spaces.

Art Info reported that many spaces, including R 20th Century in SoHo, Rachel Uffner Gallery on the LES, the New Museum on the Bowery, Postmasters Gallery in Chelsea, and Storm King Art Center in Mountainville are without power. Others, including art spaces in Chelsea and Bushwick, were hit especially hard. Among the most affected was gallerist Zach Feuer, whose gallery is on West 22nd Street between 10th and 11th Avenues. At the peak of the storm, waters reached five feet inside his gallery and almost all of the work in his current exhibition, “Kate Levant: Closure of the Jaw,” has been destroyed. As of yesterday, Feuer and his staff were planning to return to the gallery to break open the warped-shut door to the back room where much of his inventory is kept. Some of the storage racks are built higher than five feet, so he’s hoping they provided minimal protection. Although he had not been able to fully assess the damage, he estimated that 2 percent of the artworks “escaped damage.” Additionally, the wall between his gallery and its neighbor, CRG Gallery, was torn apart during the storm. Meanwhile, in Greenpoint, Brooklyn, 99 Commercial Street, an old factory that was converted into studios for dozens of artists for many years, was flooded by the waters from the Newtown Creek, destroying years of work.

Besides the damage done to the artworks themselves, the exhibit spaces, offices, and storage spaces were affected. Tony Coll, who manages the building that includes Feuer’s gallery, as well as the Franklin Parrasch Gallery and the CRG Gallery, said that the storm caused damage to the building that would have to be dealt with before many of the galleries could open for business. Coll stated that in addition to still being without power, there may be damage to the electrical systems. Repairs will also have to be done to the interior walls and doors. Coll estimated that the costs for his building would be around $200,000.

Once the immediate devastation of the hurricane has been dealt with, a major question to be tackled is how artists, dealers, and institutions will sort out the cost of damage done to art works and how insurance will be affected. Art dealer Lisa Schroeder noted over Twitter that her gallery has insurance for $500,000, but many galleries do not insure art, though most have liability and short-term travel insurance. She predicts that “premiums are going to go through the roof.”

The unprecedented damage done to one of the world’s centers of art creation and business will undoubtedly force insurance companies, business owners, and artists alike to reassess how legal and insurance risks will be managed in the art world.

To read up on coverage of how the art world has been affected around the city:

New York Times

Huffington Post

NY Gallerist

Art Info