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

 

“Legs”: Art Law Issues Stand Out in a New Documentary

By Adelaide Dunn*

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Film still from Legs: A Big Issue in a Small Town, showing Larry Rivers, “Legs”. Source: ReelGA.com

In Sag Harbor, NY, a fiery local debate over a prominent artwork, which started in 2008 and still rages on, has led residents to consider exactly what it means to live in a small town with a big personality. Legs: A Big Issue in a Small Town (2015) is a documentary by Sag Harbor-based filmmaking power couple Beatrice Alda and Jennifer Brooke, which tells the heartfelt and amusing story of a giant pair of legs and a multilayered community struggling to define its identity (See trailer: https://vimeo.com/162895102)

A haven for artists, intellectuals and freethinkers, Sag Harbor is situated at the center of New York’s Hamptons – where a long list of creatives, including Jackson Pollock and Willem de Kooning, have lived and worked. But, as the documentary reveals, the town also has a rich whaling history and toytown vibe that its self-described “natives” strive to preserve.

The sculpture at the heart of the issue is a large pair of legs, created by Larry Rivers (1923-2002). A known provocateur, Rivers “had the audacity to challenge abstract expressionism” by combining figuration with abstraction and parodying the old masters. (Jackson Pollock once tried to run over one of Rivers’ sculptures in East Hampton.) Visitors had to walk through the middle of the Legs to enter Rivers’ studio nearby in the town of Southampton. Some were amused and others annoyed, sowing the early seeds of discord surrounding the Legs.

Ruth Vered and Janet Lehr – a couple of eccentric gallerists – purchased a second iteration of the Legs in 2008 and mounted them to the side of their home, a converted, whitewashed Baptist church. At once quirky, racy and Pop, the sixteen-foot pair of fiberglass Legs are mysteriously androgynous, poised in a carefree prance, and adorned with garter-like stripes. Loved by some and loathed by others, the Legs quickly became an iconic local landmark and the subject of a protracted legal dispute, beginning in 2008 and continuing today.

The Case

Soon after the installation of the Legs, Vered and Lehr’s neighbors complained to the Sag Harbor Zoning Board. The Sag Harbor Village Building Inspector subsequently concluded that they needed a building permit, and the Sag Harbor Village Attorney issued an opinion stating that the Legs were an “accessory structure” in violation of the requirements of the Zoning Code of the Village of Sag Harbor (Applebome). Most notably, the Legs are located a foot from the property line where 35 feet is required (Sag Harbor Online).

After the Building Inspector denied Lehr and Vered’s application for a building permit in 2010, in 2011 they petitioned the Sag Harbor Zoning Board of Appeals to allow them to keep the Legs where they stand. The Board denied their application without prejudice. A string of public hearings followed from 2011 to 2012. Lehr and Vered were supported by dozens of Sag Harbor residents who argued that the Legs are a work of art that should remain, as well as the Larry Rivers Foundation, which produced a petition signed by 400 local residents arguing the same. Neighbors continued to call for the removal of the sculpture (Menu).

In 2012, Lehr and Vered’s attorney argued before the Board that this is a unique case that will not create a detrimental zoning precedent, because Larry Rivers has an important place in the locale’s artistic history, and because the amount of support Lehr and Vered have received indicates that there is serious value to the Legs remaining in their prominent position in the Village. Moreover, the Legs should not be dealt with under the Zoning Code because they are a form of expression protected under the First Amendment. He made the point that other forms of expression, like flag poles and bird baths, are not regulated by the Zoning Code. Further, public health, safety and welfare are not impeded by the sculpture (Sag Harbor Online).

The Board rejected those arguments, holding that the issue of art was a red herring, and that a work of sculpture can still be subject to zoning laws. But the Board nevertheless allowed aesthetics to affect its decisionmaking. It stated that the Legs are an undesirable change in the character of the neighborhood, and their location in the historic district of Sag Harbor is contrary to the Village’s goals of preserving its historic features. Vered called the Board a “bunch of chickens” and appealed the decision (Sag Harbor Online).

In 2015 the New York State Supreme Court in Riverhead upheld the Board’s ruling that the Legs are a structure that is subject to the Zoning Code. The Court dismissed the issue of the Legs’ status as a work of art, reasoning that “what is art?” is a “question philosophers from Plato to Arthur Danto have debated, [which] is best left to their province” (Steindecker). But for now, the Legs remain standing. With characteristic vigor, Lehr and Vered have appealed the New York Supreme Court’s decision and are not removing the Legs until they are forced to do so.

The Film

In preparation for the film, Brooke and Alda interviewed an impressive diversity of Sag Harbor residents and asked for their opinions regarding the Legs. Interviews with artists, musicians, critics, lawyers, sociologists, café owners, local politicians and other residents offer earnest perspectives. For some, the Legs are a reassuring symbol that Sag Harbor has a sense of humor and a creative spirit. Responses range between “live and let live” and “who cares?”. For others, the Legs are an unwelcome punctuation of the town’s quaint, historical aesthetic. Sag Harbor is a town facing significant change, due in part to its popularity as a vacation spot for New York City’s upper crust. To the “native clan”, the preservation of Sag Harbor’s look is a surrogate for the preservation of its “culture” – a concept that is also up for debate. Behind this seems to be an unspoken jibe against whom they see as foreign art snobs and pretentious Manhattanites invading their neat world.

The film’s conversation touches upon three themes common to art lawsuits (each analyzed below): (1) what constitutes art, and who is qualified to make that call? (2) the implications of a community rejecting an artist’s expression, and (3) the tendency of art lawsuits to provide platforms for broader social inquiries and new creative expression. Legs uncovers the universal complexity of social dynamics in small towns and queries how we tolerate our neighbors’ differences. This writer had the pleasure of seeing Legs “in situ”, at Sag Harbor’s Bay Street Theater, as part of the 2016 Hamptons International Film Festival. The colorful cast of talking heads could be seen – and heard – during the screening and the following Q&A with Alda and Brooke.

Art Law Theme #1: What is Art?

In its decision regarding the 2015 appeal, the New York State Supreme Court in Riverhead side-stepped the problematic conundrum of “what is art”, choosing not to behave like art critics. Indeed, this question has preoccupied the contemporary art world since the readymade movement, originating with Marcel Duchamp’s famous urinal and carrying through into noted contemporary oeuvres like those of Jeff Koons and Dan Flavin. Appropriating a readymade consumer object, placing it within an art gallery and elevating it to the sacred status of “art” causes the viewer to question the validity and sincerity of “art” as a concept. This interpretive tension lies beneath a great deal of contemporary art, readymade or other. It is no wonder contemporary art that creeps into courtrooms causes such anxiety. The law depends on stable categories and analogies that enable binary, adversarial approaches to problem solving. Contemporary art, at its very core, aims to resist the notion that there can be a right answer, and that “art” lends itself to a stable definition.

The classification of artworks as everyday objects – the reverse of the readymade – is an occasional conceptual defunct of the law. The decisions of international customs authorities provide two interesting examples that can be compared with the New York State Supreme Court’s decision regarding the Legs.

The first involves the late Dan Flavin. Flavin is celebrated for his vibrant and dramatic assemblages of fluorescent tubes of strip lighting, which have exhibited at noted galleries and museums worldwide. But the European Commission ruled in 2010 that Flavin’s works should be classified for tax purposes as “wall lighting fittings”. This means that any works of the American artist being imported into the EU are liable to full value-added tax, which is 20%. If his works were treated as sculpture, they would only be liable to 5% (Kennedy).

Constantin Brancusi, a key inspiration for Flavin, is coincidentally also a victim of philistine customs rhetoric. When none other than Marcel Duchamp brought a selection of Brancusi’s sculptures, including his iconic Bird in Space, from Paris to New York City in 1926, a customs official (himself an amateur sculptor) refused to call it art (Gayford). To qualify as “sculpture”, works had to be “reproductions by carving or casting, imitations of natural objects, chiefly the human form” (Cleary).

Because Bird in Space was an abstract rendition of the form and motion of a bird, missing representational signifiers like wings and a beak, the work was relegated to the category of “Kitchen Utensils and Hospital Supplies”. For that reason, 40% of the work’s value was levied against it, while qualifying sculptures were free from import taxes. But a thirteen-month appeal, which involved Brancusi testifying as to his painstaking production method, and supporting testimony from Jacob Epstein and Edward Steichen, led to a reversal (Brancusi v. United States). This was the first U.S. court decision recognizing that non-representational sculpture could be considered art (Martin).

As these examples and the case involving the Legs reveal, artists’ unique expressions can be undermined and injustices can occur when challenging artworks are categorized as mere objects.

Art Law Theme #2: the People v. the Artist

Furthermore, it seems democratically significant that the small community of Sag Harbor can advance such a critical voice regarding aesthetics and what is, in the words of one of the film’s interviewees, a “frontal challenge to private property”. It is also significant that those in favor of the Legs’ removal amassed such lobbying power. This is because there is a general assumption in the law that the public benefits from having free access to artworks. For example, according to moral rights rhetoric, artworks present references to history and the contemporary that influence present and future generations. Those references become part of a community’s shared vocabulary (Hansmann & Santilli, 106). And in copyright and First Amendment philosophy, society’s uncensored marketplace of ideas is fed by the public consumption of creative works, no matter the content. A diversity of expression in the marketplace of ideas strengthens democracy, since creative works have political and social implications (Netanel, 159).

But situations like that in Legs allow us to deconstruct these assumptions as out of step with the nature of contemporary art. The famous case involving the removal of Richard Serra’s sculpture Tilted Arc from the Federal Plaza in Manhattan provides a useful analogy. The federal employees and area residents that argued for the removal of the sculpture – a 120 feet long curved steel wall – mainly protested the imposition of an austere and challenging aesthetic on them (Duboff, Burr & Murray, 337). Despite testimony of numerous art world amici, including Keith Haring and Claes Oldenburg, arguing that dismantling a site-specific work is equal to destroying it, the Court ordered the removal of Tilted Arc. Like with the Legs, the Court justified its decision with practical considerations, such as Tilted Arc’s obstruction of police surveillance and attraction of rats (Serra v. United States General Services Admin). The removal was said not to be content-based and not a violation of Serra’s right to freedom of expression.

Both the Legs and Tilted Arc illustrate how, when sculptures with unstable meanings are superimposed onto the adversarial legal system, artificial binaries can shape trial narratives. For Tilted Arc, that binary manifested as the people versus the artist. Similarly, the Legs dispute pitched regular people against the art world.

Legs captures well the contrasting personalities driving the debate. The disgruntled neighbor who lodged the initial complaint with the Zoning Board receives considerable screen time. Poised within her plush heritage home, she labels herself the representative of “the neighbors who have to look at [the Legs] everyday”, calling them an “eyesore”. During the screening, her scathing remarks were met with laughter and lighthearted jeers from the audience.

Vered – unapologetically an art world archetype – makes outspoken and emotive comments about her Legs that anchor the conversational flow. She mentions a tacky blow-up angel decoration in a nearby yard that she and Lehr found “offensive” but managed to tolerate. Citing the U.S. Constitution in her convictions, she opines, “freedom of speech is becoming freedom of hate”. Being somewhat inflammatory by nature, Vered’s response to the dispute was to install floodlights around the Legs that lit them dramatically each night.

One of contemporary art’s virtues is, of course, its resistance to widespread understanding and approval. But some critics have argued that contemporary art has become a collection of abstruse messages accessible only to art world denizens (Meeker, 218). The critic Adam Gopnik writes that contemporary art’s popular audience has been “displaced by a professional constituency” (Gopnik, 141). It is this alienation of regular people from the contemporary art world – accentuated by the legal adversarial system’s narrative binaries – that appears to have exacerbated the disputes behind the Legs and Tilted Arc cases.

Art Law Theme #3: A Platform for Broader Social Inquiries and New Creative Expression

A positive ramification of arts conflicts is that they allow people to play out their anxieties without resorting to violence. This provides a democratic platform upon which to reconcile different values and identities within a community. Stephen Tepper, a sociologist appearing in the film, offered an interesting theory on how democracy enables communities to engage in these “symbolic conflicts”. This leads to “ontological security”, or mental stability resulting from the coherence of one’s social life. Tepper is the author of Not Here, Not Now, Not That! Protest Over Art and Culture in America, which examines some 300 examples of arts conflicts and reaches these conclusions.

Indeed, Brooke and Alda utilized the dispute as a platform for discussing wider social tensions. The implicit hostility felt by different racial groups is shared. The homophobia experienced by a couple of Sag Harbor dads – who until recently were prohibited from being Boy Scout leaders – is told with candidacy and intimacy. Power dynamics between native residents and recent arrivals are told of. Though Legs concludes before the case is fully litigated, the discussion, according to one interviewee, is just as important as the resolution.

The best arts conflicts are those that result in new creative works. Christoph Büchel’s response to the Massachusetts Museum of Contemporary Art’s lawsuit against him was to make new art out of thousands of pages of discovery documents. Mass MoCA was asking the Court for the right to open to the public Büchel’s immense yet unfinished installation, “Training Ground for Democracy”. Büchel and his attorney called the museum’s refusal to give them confidential documents “censorship” (Kennedy).

Brooke and Alda similarly found good documentary fodder in the dispute. They named their goal in the Q&A as giving a “voice to the village”. Based on the heartfelt comments and interjections of Bay Street Theater’s attendees, they clearly succeeded. The filming and screening of the documentary seems to have constituted a catharsis for the community. While legal institutions make attempts at dispute resolution, Legs offers a more therapeutic process, which might be called dispute relief.

Conclusion

In all, Legs is a rich, meandering conversation that stands as a celebration of the Sag Harbor community’s passions – despite how different those passions can be. Viewers shouldn’t expect the drama and sensationalism that often comes with coverage of artistic debates and free expression matters. Though localized, the themes explored are universal to small towns, such that Legs will strike a chord wherever it screens. It has, in fact, had a successful first run of over 25 festivals, and the next stages of distribution should be just around the corner.

Vered and Lehr’s appeal will be one to watch. Despite the unfavorable decisions from the Zoning Board of Appeals and Supreme Court of New York at Riverhead, an appeal court may well see the situation differently. New York’s courts have in recent years become more adept at importing into their decision-making techniques of artistic analysis, awareness of the art world’s unique business conditions, and acknowledgement of new production techniques in the realm of contemporary art. In such cases, which often involve debates over artistic meaning and merit, the roles of art critic and legal advocate can be intertwined. It is likely that a court will be sympathetic to Lehr and Vered’s position and make a finding that their freedom of expression and private property rights triumph over zoning requirements and neighborhood complaints about aesthetics. More on this as the Legs saga continues.

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From the editors: A special screening of “Legs: A Big Issue in a Small Town” by the Center for Art Law as part of the 2017 “You’ve Been Served” series is planned for the Spring of 2017. Art law topics to be discussed in conjunction with the film will include VARA and NYS zoning laws.

 

 

References and Sources

*About the Author: Adelaide Dunn recently graduated with an LLM in Competition, Innovation and Information Law from the New York University School of Law. Before that, she completed a BA/LLB(Hons) in Art History and Law from The University of Auckland in New Zealand. Adelaide is particularly interested in the intersections of copyright, moral rights and the visual arts. She is currently doing intellectual property, entertainment and commercial law work as a law clerk for a solo practitioner in New York City. Adelaide can be reached at adelaide1dunn@gmail.com.

 

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