Two years ago, the 5Pointz artists’ lawsuit against a real estate developer in Queens who whitewashed an entire site of the “aerosol art mecca” in a stealthy overnight operation, resulted in a sweeping victory of a $6.75 million verdict in favor of the artists. The saga continued when the developer, Gerald Wolkoff, appealed the trial court’s decision. In the appeal, the real estate developer posed two critical questions: Can temporary artworks like street art obtain recognized stature? Did the trial court look at the appropriate evidence regarding the recognized stature of 5Pointz? In a 32-page written decision released on February 20, 2020, the three-judge panel in the Second Circuit Court of Appeals answered yes, and yes.
The Visual Artists Rights Act (VARA) protects artworks from destruction, but the artists must prove that their works had gained “recognized stature” — that is, the work had a certain intrinsic quality or artistic status that has already been acknowledged by the relevant community. The appellate court affirmed that the artworks at 5Pointz, even if temporary, had attained recognized stature. Comparing 5Pointz with The Gates (2005) by Christo and Jeanne-Claude, the court cites this highly celebrated installation art that remained only 16 days at Central Park as one of many examples of artworks that had achieved “significant critical acclaim” despite its short-lived display. Finding similar parallels in the genre of street art, the court further opined, “[a] Banksy painting at 5Pointz would have possessed recognized stature, even if it were temporary.”
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During the oral argument, when Wolkoff’s attorney called these examples “extraordinary” categories not comparable to 5Pointz, he was met by a pointed push back by Judge Parker: “There are all kinds of galleries that folks like you and I may not go to that have temporary installations which among the connoisseurs are [considered] very important works of art.” The court observed that community standards must be applied rather than the subjective eyes of the judge or the lawyer arguing the case, because art belongs to the artistic community and the public.
Moreover, according to the appellate court, the recognized stature is a “fluid concept” which requires a holistic assessment of the status of the artist, the work’s site of display, and the opinion of the relevant artistic and public community. At the oral argument, Judge Raggi commented, “if the chip comes from the Parthenon it is going to have a stature that doesn’t come from a building site on 34th street. Same way with the artist’s reputation — any scribble by Picasso is going to have more stature than something that I scribble here today.” Pointing out the intricate etiquette at play in 5Pointz for selecting and creating murals on limited space — orchestrated by Jonathan Cohen, the distinguished curator and founder of 5Pointz — the appellate court likened 5Pointz’s curated collection to that of major museums like the Louvre or the Prado. Nodding to the culture of mutual respect at 5Pointz, the court added that “a respected aerosol artist’s determination that another aerosol artist’s work is worthy of display” is another proof of recognized stature.
Most importantly, the Court highlighted the relevance of the public community and their appreciation of 5Pointz. At trial, Judge Block progressively embraced social media and online commentary as evidence of the public support that 5Pointz had garnered. In his written decision in June 2018, Judge Block went as far as to note the number of “followers” and “likes” an artwork received on Instagram as an appropriate gauge of an artwork’s stature in the technologically-advanced community of art aficionados. Likewise, Judge Raggi during the oral argument acknowledged that these works had been woven into the fabric of the urban community: “The artworks] have been selected … for these people who apparently come from abroad and made this [visit to 5Pointz] part of their New York experience.”
Having been closely involved with a unique case like 5Pointz from trial through the appeal (Han, an attorney previously associated with Eisenberg & Baum LLP, and Tseng formerly an art specialist and litigation paralegal on behalf of the artists), we were aware of the existing challenges in proving recognized stature due to the term’s loose definition under the law. Because of the lack of case precedents, the opinion of the public and the advisory jury may have moved the gavel in the trial court and in the appeal decision. The trial court’s verdict and the extensive amount of factual findings in Judge Block’s written decisions would be difficult to reverse.
The appellate court’s masterfully written decision has established a legal bedrock to concretizing the meaning of artists’ “moral rights” under VARA, and it will only be a matter of time before language can catch up with history. But it may also be a double-edged sword that leads to the unintended consequence of decreasing wall space for street artists, because the perceived threat of lawsuits may discourage building owners from sponsoring street art. However, the law offers simple solutions to balance the rights of building owners and artists: either obtaining a written waiver from the artists or providing artists a 90-day notice and opportunity to salvage removable artworks.
Editor’s note 2/21/2020 11:58pm EST: This article reflects the views of the authors as individuals, and it does not reflect the views of any other entities that the authors may be or may have been associated with.