New York leads the way in promoting artists’ moral rights and protecting destruction of artworks

March 20, 2018

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The US District Court for the Eastern District of New York has recently ordered a real-estate developer to pay an extraordinary sum of damages (totalling $6.75 million) to a group of artists to compensate them for destroying a large number of graffiti art on the 5Pointz building in Queens, New York City (see decision of 12 February 2018 here).

5Pointz, originally a largely dilapidated former factory in a crime infested neighbourhood of NYC, has been owned by Jerry Walkoff since the 1970s. After being approached by street artists for permission to paint on the outer walls of the building, granting such permission and putting Jonathan Cohen, a famous street artist, in charge, 5Pointz soon became a major attraction drawing thousands of visitors and being used in movies, on television and music videos.

All this came to an abrupt end when the graffiti art was whitewashed by Mr Walkoff following the denial of a preliminary injunction for the prevention of a planned demolition of 5Pointz, but before the court had made a final decision.

The artists went on to request damages for the demolition of their graffiti art on the basis that Mr Walkoff had acted contrary to the Visual Artists Rights Act (VARA) which grants some moral rights to artists (such as rights of attribution and integrity).

The court considered the artists’ right of integrity, whereby the artist can prevent the destruction of a work of visual art when it is of recognised stature or is prejudicial to the artist’s honor or reputation. The court had no problem in finding that 45 of the 49 works had recognised stature and commented that “even under the most restrictive of evidentiary standards almost all of the plaintiffs’ works easily qualify as works of recognized stature.” The key evidence accepted by the court included the testimony of an expert art appraiser, Renee Vara; as well as of Jonathan Cohen himself, described by the court as “one of the world’s most accomplished aerosol artists.”

The main contention of Mr Walkoff was that street art works are ephemeral and that VARA should not afford protection to temporary works. This was however rejected by the court who found that, although VARA does not directly address the issue, it resolves the tension between building owners’ rights and the artist’s rights, thus protecting temporary works. Section 113 of VARA provides protection in two circumstances when a protected work of art has been integrated into a building: (i) when the artwork cannot be removed from the building (in this case the artist may sue to prevent the destruction of the work unless he waived this right) and (ii) when the artwork can be removed, so contemplating that the work can be temporary.

In the latter case, VARA gives the opportunity to the artist to save the work upon receipt of a 90 days’ written notice from the building owner. If the artist fails to remove within the 90 days or if the owner could not notify the artist after making good effort, the artist’s VARA rights are deemed waived and the owner may destroy them without consequences. No such notice was given by Mr Walkoff in this case.

The Court therefore went on to find that the artists’ works were legally protected under VARA and that Mr Wilkoff willfully broke the law in destroying 5Pointz before having the Court’s permit and failing to give the 90 days’ notice to the artists to remove their works provided by VARA. The size of the award represented a total of statutory damages for the individual works concerned awarded at the maximum level. One of the strongest factors behind the award of damages at the maximum level was Mr Walkoff’s attitude and the audacity of the destruction. In contrast the artists were seen to have “conducted themselves with dignity, maturity, respect, and at all times within the law”.

The decision, although on its face a triumph for street artists, could leave real estate owners reluctant to allow artists to use their buildings for the creation of such art.

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