On November 12, 2013, Senior District Judge Block from the Eastern District Court of New York (EDNY) declined to issue an injunction which would have prevented the 5Pointz buildings in Long Island, New York, to be demolished. The EDNY published its opinion on November 20. The case is Cohen v. G&M Realty LP.
The seventeen plaintiffs in this case are graffiti artists who had painted their works on the walls of 5Pointz, which would be destroyed by demolishing the buildings. This is why they filed suit against defendants, real estate development companies and owners of the buildings, asking the EDNY to issue a temporary restraining order to prevent 5Pointz from being torn down.
Plaintiffs argued that any intentional distortion, mutilation, modification or destruction of 24 of their works would be prejudicial to their honor and reputation pursuant to the Visual Artists Rights Act of 1990 (VARA), the federal law which provides some moral rights to some visual artworks.
5Pointz
5Pointz is not just one building, but several buildings in Queens covering 200,000 square feet which have been covered by graffiti since the mid 90’s or so. In 2002, one of the plaintiffs, Jonathan Cohen, a professional artist under the name “Meres One, approached Gerald Wolkoff, who owns the building, to become the curator of the space. Wolkoff agreed and Cohen started selecting which artists could display their works. Each artist retained all copyrights to their work, and none were paid.
Graffiti artists from all around the world came to the site, which became known as 5 Pointz. The ever-changing facades and interiors became world-famous and were quite a sight from the 7 line, as the train snaked around the buildings.
What are Moral Rights?
Moral rights are non-economic rights that authors may enjoy, and are even considered human rights under article 27-2° of the Universal Declaration of Human Rights, which states that “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
Moral rights are:
a) The right of first disclosure, that is, the right to reconsider the work or to withdraw its publication; b) the right of attribution, that is, the right to be recognized as the author of the work, or to publish the work anonymously; and c) the right of integrity, that is, the right to have the work respected and to prevent is mutilation or distortion.
The Visual Artists Rights of 1990
VARA recognizes only two moral rights, the right of attribution and the right of integrity. However, the scope of VARA is limited to works of visual arts, defined by 17 U.S.C. § 101 as single copies of drawing, print or sculpture, or limited editions of 200 copies or fewer signed and numbered by the author.
Artists have the right to claim authorship of a work and the right to prevent its distortion or mutilation or other modification which would be prejudicial to the artist’s honor or reputation , 17 U.S.C. § 106A(a)(3)(A). They also have the right to prevent its destruction if the work is “of recognized stature” under 17 U.S.C. § 106A(a)(3)(B).
What is a Work of Art of “Recognized Stature”?
VARA, however, does not define what “recognized stature” means. The Southern District Court of New York (SDNY) proposed in 1994 in Carter v. Helmsley-Spear to use a two-tiered test to prove such stature.
First, plaintiff must show that the work has stature, meaning that it is ‘meritorious’. This is necessary as copyright protects works of authorship as long as they are original, but the level of originality required is very low. No need to be Picasso to have one’s drawings protected by copyright. But a ‘meritorious’ work would induce some awe that a competent amateur drawing may not bring.
But whose opinion about the work should the judge take into consideration? The second tier of the SDNY Carter test requires the plaintiff to prove that the stature is ‘recognized’ by art experts, the artistic community, or by some cross-section of society, but not necessarily everybody.
The EDNY acknowledged the two-tiered Carter test, and heard testimony from three of the seventeen plaintiffs during a preliminary injunction hearing. The court also heard expert testimony. Defendant’s art expert testified that in her view, people came to see 5Pointz not to see a particular work, but to see the ensemble.
The court seems to have been convinced by this testimony, as it found that 5Pointz could not be protected by VARA, as the law only protects a work of visual art, while 5Pointz is a “tourist site.”
The Transient Nature of Graffiti Art
Artists took turn at 5Pointz to cover some parts of the buildings, which were used to rotate quickly from one art work to another. Cohen is quoted in a 2007 interview with the Christian Monitor, cited by the EDNY, that some works only last 12 hours, some remain for two years.
Some walls, however, bore artworks which Cohen wanted to preserve, not allowing subsequent artists to paint over, among them the 24 works of the plaintiffs in this case.
The transient nature of graffiti, even its ephemeral nature, also weighed in the EDNY decision, as Judge Block noted that, because the artists knew that the buildings were intended to be demolished, they had “created their own hardships.”
During the trial, Wolkoff, the owner of the building, testified that he had told Cohen that the buildings would eventually be torn down. Some of the 5Pointz artists also testified that they knew the buildings would be eventually be torn down.
The EDNY also quoted a 2002 NDNY case, Pollara v.Seymour, where the court denied VARA protection to a mural commissioned to the artist as a “single use” piece for a particular event, reasoning that “[i]t defies the underlying purposes of VARA to assume that the statute was intended to protect works of artistic merit without regard to whether…[they] were otherwise intended to be preserved for posterity as works of artistic merit.”
The owners of 5Pointz have now white washed the buildings. However, the case is not over and a trial court will review whether plaintiffs are entitled to damages. While doing so, it will decide whether the 24 works are of recognized stature under VARA. If the trial court recognizes the plaintiff’s works are of “recognized stature” under VARA, defendants may have to pay monetary damages to the artists.
The EDNY noted that New York City could have exercised its power of eminent domain to acquire the site, but it chose not to do so. That leaves us with the regret that 5Pointz will not become officially what it had been, unofficially, for years: the world’s greatest museum of graffiti, in the very city where this art was first born.
Image is @5pointz courtesy of Flickr user Pelle Sten pursuant to a CC BY 2.0 license.
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