5Pointz: The Intersection of Intellectual and Real Property


5Pointz: The Intersection of Intellectual and Real Property by Mark Kaufman

Anyone who has had the pleasure of riding outbound LIRR trains from New York’s Penn Station over the years probably remembers a memorable sight: the 5Pointz graffiti artist showcase emblazoned on the exterior walls of some aging factory buildings in Long Island City. Having reached at least a tacit deal with the owner of the buildings, the space provided a venue for graffiti artists to produce photo-realistic murals of hip-hop legends as well as the familiar practice of “tagging,” which consists of writing the artist’s nom-de-guerre with highly imaginative and stylized lettering. 

That building, though, was owned by someone. Gerald Wolkoff had agreed for over a decade to offer below market rent for artist studios in the building and to allow the creation of 5Pointz on its outer walls. But Mr. Wolkoff could only tolerate losing money for so long. In 2013 he planned to raze the building and develop the land for a more lucrative project and informed the curator of 5Pointz, Jonathan Cohen, of those plans. 

Cohen and fifteen other artists sought in the District Court of Eastern New York a preliminary injunction to prevent the destruction of 5Pointz. Their argument centered on the 1990 Visual Artists Rights Act, or VARA, a provision of the Copyright Act, which is the closest thing the United States has to the “moral rights” one finds in Europe. VARA serves as an avenue to seek an injunction or monetary damages to prevent the destruction of artwork that is publicly displayed. 

The plaintiffs’ 2013 request for a preliminary injunction was denied; the buildings were torn down; and highrises were built up. Cohen and 5Pointz filed a series of amended complaints against Wolkoff under VARA, and Wolkoff filed a motion for dismissal. On March 31, the court determined that the artists’ claim to stop the demolition of the buildings (and attached artwork) was dismissible for two reasons: (1) the developer had the right to take down the building, because after all, it’s his building; and (2) someone can’t commit a tort when they are enforcing rights they actually have. But those state law causes of action were dismissed because VARA preempted them.

For the building’s owner, that good news was not, unfortunately, the only news. The Court went on to say that whether the works are protectable under VARA depends upon whether they are of “recognized stature.” Frankly, it’s hard to know what the heck that means; it’s not clear whether it’s the renown of the art work or the renown of the artist that adds up to “recognized stature.” (Typically, the statute itself is silent on this issue.) The plaintiffs argued that their artwork had been used by big commercial companies like Heineken, Coors, Swatch, and Deutsche Bank. The murals at 5Pointz had also received accolades from art critics and the general public. The question for the jury will be whether the art critics’ reviews and street creds of the artists, plus the reputation of the specific works on the walls, add up to protection under VARA.

I have to admit that this case fascinates me — especially because here at Kaufman & Kahn, Kaufman focuses on intellectual property while Kahn does real property. (Between the two of us, we cover the known universe.) So here’s a situation where the two are in direct conflict. It seems to me that Wolkoff has the right to develop or destroy the property as he wishes; VARA shouldn’t undermine such basic rights of real estate, or ownership of anything. However, with VARA and its preservation of the artist’s rights in public works, a land-owner’s additional costs of development may be the presently unknown amount of money necessary to pay artists for destroying their work.

Cohen, et al. v. G&M Realty, et al. (E.D.N.Y. Index No. 13-CV-5612) will be presided over by Judge Frederic Block, who also presided over the 2013 case.

Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn

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