NYC Street Artists Won Their Case, Earning “Recognized Stature” for 5Pointz Graffiti

On October 5, 2020, the Supreme Court denied certiorari of a case appealed by a New York City developer who was required to pay $6.75 million for destroying murals at the 5Pointz complex.¹  The Court did not explain why it refused to hear the case, but the denial essentially put an end to this long-time dispute that again placed graffiti copyrights in the spotlight.²

The dispute arose from a divergence of the development of an artistic corner in New York City that garnered great popularity.  Initially, in 2002, the owner of 5Pointz, Jerry Wolkoff, decided to install aerosol artworks on a series of warehouse buildings in Long Island City, Queens, New York City.³  He enlisted a prominent aerosol artist, Jonathan Cohen, as the curator of this project.  Under Cohen’s leadership, various aerosol artists flocked to 5Pointz and filled the site with distinguished artwork over the years.⁴  The site attracted great attention from the media⁵ and gradually earned a title as “the world’s largest open-air aerosol museum.”⁶

However, the honeymoon eventually came to an end.  In 2013, Cohen learned that Wolkoff was seeking to convert 5Pointz into a luxury apartment complex.⁷  Wolkoff had obtained municipal approval to demolish the site, while Cohen made every effort to prevent the destruction.⁸  After an unsuccessful application to the New York Landmark Preservation Committee to designate the site as one of cultural significance, Cohen and other artists sued Wolkoff and the development company under the Visual Artists Rights Act (VARA) and sought a preliminary injunction.⁹ Astonishingly, days after the district court denied the petition for a preliminary injunction, Wolkoff whitewashed the site, destroying dozens of murals.¹⁰

VARA grants visual artists certain “moral rights” in their work.  It prevents “any destruction of a work of recognized stature,” and provides that any intentional or grossly negligent destruction of such work is a violation of an artist’s moral right.¹¹  The core issue of the case then became whether the artwork at 5Pointz enjoyed “recognized stature.”¹²  On appeal, the Second Circuit defined a work of recognized stature as “one of high quality, status, or caliber that has been acknowledged as such by a relevant community.”¹³  The court pointed out that VARA does not distinguish temporary works from permanent works; thus, the temporary status of the graffiti at the site does not by its nature deprive the artwork of VARA’s protection.¹⁴

Interestingly, the Second Circuit went on to acknowledge that street art in general, even though mostly temporary, has become an important part of contemporary art.¹⁵  In some cases, street art has even become high art and been welcomed by the general public.¹⁶  Nevertheless, the court did not conclude that all street art automatically achieves recognized stature, and the burden is on artists to prove such status to claim statutory damages.¹⁷  VARA does not provide a standard for recognized stature, and the court here largely relied on the evaluation and acknowledgement of the murals from the relevant artistic community.¹⁸  Since the artists had provided sufficient evidence, including expert testimony on the market value of the artwork and the recognition of Cohen as a prominent artist, the Second Circuit upheld that the 5Pointz murals had achieved recognized stature before the destruction.¹⁹  Accordingly, the court sustained the damage award for the artists.²⁰

The 5Pointz artists scored a victory, but graffiti works in general still remain in a grey area where there is no clear legal protection.  For example, some states still consider painting graffiti without the property owner’s consent to be a criminal offense.  New York state law explicitly provides that “[n]o person shall make graffiti of any type on any building. . . without the express permission of the owner.”²¹  Similar regulations can be found in the District of Columbia, ²²Delaware,²³ and Minnesota.²⁴  You may ask: do VARA protections extend to illegal graffiti?  Technically, the Copyright Act does not condition copyrightability on the legality of the manner how an artwork is created.²⁵  However, in practice, courts may consider the legality of a piece of artwork as a factor for granting or denying copyright protection.²⁶  At least one court has expressed the view, without deciding the issue, that determining the copyrightability of graffiti art “would require a determination of the legality of the circumstances under which the mural was created.”²⁷  This is a question unanswered by the Copyright Act itself that requires further clarification by Congress or courts.

Let’s set aside the illegality concern for a moment and come back to 5Pointz.  It was a sad victory, wasn’t it?  The artists were disheartened to see their works being erased, and even the trial judge admitted that he would have granted a preliminary injunction had he known the demolition of the buildings could have been delayed.²⁸  With 5Pointz gone, the artists reunited in lower Manhattan to launch the Museum of Street Art,²⁹ where you can get a taste of the glorious past of 5Pointz.  But to avoid repeated heartbreak, a permanent installation may call for greater attention and better copyright protection of graffiti art.

(Cover Photo: Keven Bluer/unsplash.com)