5Pointz Verdict a Mixed Blessing for Graffiti Artists

Five years after developer Jerry Wolkoff painted over the iconic 5Pointz graffiti murals en route to building a pair of bland, beige luxury high-rises, a federal judge ruled Monday in favor of a lawsuit brought by 21 street artists against Wolkoff. In a blistering decision, Judge Frederic Block called the literal whitewashing of 5Pointz “an act of pure pique and revenge,” and ordered Wolkoff to pay the creators a whopping $6,750,000 in damages.

“The graffiti artists are elated by the court’s decision in this case,” Eric Baum, attorney for the plaintiffs, told the Voice following the decision. “All of the artists at 5Pointz, led by their curator Jonathan Cohen, are professional artists who have spent their lives mastering the techniques necessary to create this art. Their art should be cherished, not destroyed.”

The decision follows a protracted, high-profile legal battle, and marks the first-ever instance of a court determining whether exterior aerosol art is worthy of legal protection. It comes four years after the demolition of the 5Pointz complex, which street artists had used as a sort of open-air gallery, with Wolkoff’s permission, beginning in the early Nineties. When word got out that Wolkoff was planning to replace the warehouse with high-rise condos, the artists mounted a public campaign to save the building, and Cohen, the site’s de facto leader, petitioned the New York City Landmarks Preservation Commission for landmark status.

But despite the public pressure, and even a call from Banksy to “save 5Pointz,” the preservation effort was unsuccessful. As a last-ditch effort, the artists filed a preliminary injunction with the court under the Visual Artists Rights Act — a seldom-used federal statute intended to safeguard public art of “recognized stature.” But before the court could issue an opinion, Wolkoff had the walls covered in white paint under the cover of night. That decision, the artists argued, was a direct violation of their VARA rights.

Wolkoff’s legal team, meanwhile, contended that artists should have known that the industrial space would eventually evolve — in this case, to a set of glass and stone towers branded with a deeply unfortunate graffiti logo. The ephemeral nature of street art, they argued, meant that 5Pointz was beyond the scope of VARA. (Wolkoff’s attorneys did not respond to a request for comment by publication time.)

The developer’s argument did little to persuade a jury, which advised Judge Block on his decision back in November (the result of an odd legal arrangement, in which both parties agreed mid-trial that the jury’s decision should be taken as a recommendation). In addition to finding that aerosol art does qualify for protection under VARA, both the judge and jury considered Wolkoff’s method of destruction so irresponsible as to warrant the maximum penalties.

“If not for Wolkoff’s insolence, these damages would not have been assessed,” Block wrote in his decision. “If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.” In other words, Wolkoff was within his rights to destroy the artwork, but doing so in the midst of a court injunction, and seemingly out of spite, weighed heavily against his case.

“The shame of it all is that since 5Pointz was a prominent tourist attraction, the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time,” the judge added. “It would have been a wonderful tribute for the artists that they richly deserved.”

Beyond the steep fine, Monday’s decision could have far-reaching consequences for local graffiti artists working on private property. Because so few cases involving VARA have made it to court, the statute’s definition of what constitutes work of “recognized stature” is hardly clear. In Baum’s view, the ruling is a “precedent-setting case,” offering “a clear indication that aerosol art is in the same category of any other fine art, equally worthy of the protections of the federal law.”

But other legal experts say that graffiti’s status as true art was never in question, and instead wonder if the expansive ruling could complicate the relationship between artists and building owners, who may now be more wary of inviting muralists to contribute work on their properties. There’s also the issue of VARA waivers — the unusual, potentially problematic clause in the 1990 legislation allowing artists to sign away their rights to protection. “If I’m a landlord who reads this, the first thing I’m now doing is getting artists to waive VARA, which in the end run could hurt artists and the power of VARA,” warned Philippa Loengard, deputy director at the Center for Law, Media and the Arts at Columbia Law School.

“Developers who commission art have their eyes wide open now,” echoed Barry Werbin, a copyright expert and attorney with Herrick, Feinstein LLP. “It’s definitely a hard lesson for them.” On the other hand, Werbin predicted that aerosol artists might be able to use the precedent as a sort of bargaining chip, extracting cash or other concessions from building owners in exchange for signing away their VARA rights.

Those who followed the case say it’s hard to immediately gauge its effect, if any, on how graffiti artists will assert rights over their work in the future. For now, the ruling offers real, unexpectedly high compensation to artists whose prized pieces were erased overnight, and a bit of schadenfreude for the rest us who never got to say goodbye. As Jonathan Cohen, known at 5Pointz as Meres One, testified during the trial, “Respect in our game is everything, and if you don’t have respect then you don’t get respect.”