Once upon a time, cheerful New York commuters’ eyes brightened when their trains approached a certain section of track. Out of the rust and gravel a vast tableau of incredibly detailed aerosol art stood out. It was called 5Pointz, and it was never meant to last forever — but that did not mean it was insignificant.
The site was secured by 5Pointz’s curator, Jonathan Cohen, through negotiations with Gerald Wolkoff, the owner of the derelict buildings (which served as the ‘canvas’). Cohen and the artists he selected always knew that the structures would eventually be torn down, but when the time came, Wolkoff proceeded with those plans in such a way that violated the Visual Artists Rights Act (VARA).
After several motions, the case went forward in the federal court for the Eastern District of New York. The judge noted that VARA would not have prevented Wolkoff from tearing down his buildings, but VARA provided for 90 days’ notice to the artists to remove or at least photograph the works. Wolkoff had misrepresented to the District Court that he had to move forward with demolition immediately — but in fact, did not even have a permit to demolish the buildings until after the judge had denied the motion to enjoin such demolition. Cohen and other artists won a judgment against Wolkoff for $6.75 million for the real estate developer’s willfully violating VARA.
You can read our full blog about the district court case, 5Pointz: The Intersection of Intellectual and Real Property.
Wolkoff appealed that decision to the Second Circuit. VARA is rarely litigated, so the guidance provided in this decision is important.
The Second Circuit said Judge Block of the District Court did not err, as Wolkoff claimed, when he found that the artists had met the requirements of demonstrating their work and achieving recognized stature. The court said that a work is of “…recognized stature when it’s of high quality status or a caliber that has been acknowledged by the relevant community.”
In considering this, it was important that the court heard from art experts rather than relying on the aesthetic judgment of the court, as we wrote about in Swift Justice — Interrupted.
In his appeal, Wolkoff argued not only that the damages were too high, but also that VARA protection should not even protect the works because they were pre-determined to be temporary in nature. The appellate court responded by saying whether or not something is temporary is irrelevant to VARA. In fact, some very interesting, temporary public works have recently been celebrated, such as The Gates (consisting of 7,500 orange, cloth gates displayed in Central Park, by the artist duo known as Christo). That exhibit only lasted from February 12 to 27, 2005, and yet it received a great deal of recognition. Similarly, Banksy’s Girl With A Balloon proved to be temporary after it famously self-destructed. That piece’s fleeting nature did nothing to minimize the acclaim for the work. Being temporary is clearly not something that prevents a work from being recognized.
The fact that the District Court did not grant damages as to all of the 49 works, but to only 45 of them, helped to demonstrate to the Second Circuit that Judge Block did not decide based on the stature of the 5Pointz building as a whole; instead, he had carefully (and properly) considered the stature of each work. The Circuit Court viewed that as another reason to affirm the judge’s decision.
Wolkoff came off like a downright villain in and out of court, stating that he would do it all again, given the chance. Combine that lack of remorse with the fact that he directly lied to the court about the timing of the demolition — and it doesn’t take a crystal ball to figure out why the judge in the district court did what he could with the wide range of discretion that VARA provides. In any event, the appellate court found that Judge Block’s decision was reasonable, under the circumstances, rather than “an abuse of discretion.” (Read: “Yeah, we would have done that to this guy, too.”)
Judicial discretion is just one of the many reasons to be a mensch in all your dealings. Gerald Wolkoff might have had a different fate if he followed that advice.
