Cohen v. G & M Realty L.P.
320 F. Supp. 3d 421 (2018)
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Rule of Law:
Under the Visual Artists Rights Act (VARA), the intentional destruction of works of visual art that have achieved "recognized stature" and are incorporated into a building is a violation of the artists' rights, exposing the building owner to significant statutory damages, particularly when the destruction is willful.
Facts:
- Gerald Wolkoff owned several warehouse buildings in Long Island City, Queens.
- Beginning in 2002, Wolkoff gave permission to aerosol artists, curated by Jonathan Cohen, to paint on the exterior walls of his buildings, which became a world-renowned art mecca known as 5Pointz.
- Cohen, as the de facto curator, established a system where certain high-quality artworks were designated for long-standing walls, while others were on short-term rotating walls.
- The artists and Wolkoff never executed a written instrument waiving the artists' rights under the Visual Artists Rights Act (VARA).
- In 2013, Wolkoff secured the necessary municipal approvals to demolish the buildings to construct luxury residential condominiums.
- In response to the planned demolition, 21 of the artists sought to preserve their work at the site.
- After a court denied the artists' request for a preliminary injunction, but before the court issued its written opinion, Wolkoff hired workmen who whitewashed nearly all the artwork on the buildings over the course of a single night.
Procedural Posture:
- Twenty-one aerosol artists sued Gerald Wolkoff and his real estate companies in the U.S. District Court for the Eastern District of New York.
- The artists sought a preliminary injunction under the Visual Artists Rights Act (VARA) to prevent the planned destruction of their artwork.
- The district court denied the artists' motion for a preliminary injunction on November 12, 2013.
- The case proceeded to a three-week trial before a jury.
- Just prior to summations, the parties consented to waive their right to a jury trial, and the court converted the jury into an advisory jury.
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Issue:
Does a building owner violate the Visual Artists Rights Act (VARA) by whitewashing aerosol artworks of recognized stature on his property without the artists' consent, after they sued to prevent the works' destruction?
Opinions:
Majority - Block, J.
Yes, the building owner's destruction of the aerosol art violated the artists' rights under VARA. The Visual Artists Rights Act protects an author of a work of visual art's right to prevent any intentional destruction of a work of recognized stature. Here, the court determined that 45 of the 49 aerosol artworks at issue were works of 'recognized stature' based on a two-part test: 1) the work is meritorious, and 2) its stature is recognized by art experts, the artistic community, or a cross-section of society. The court rejected the defense that the works were temporary, holding that VARA's provisions regarding art incorporated into buildings—which require a written waiver for unremovable works or 90 days' notice for removable ones—demonstrate that temporary works are protected. Wolkoff failed to obtain any written waivers. The court found Wolkoff's act of whitewashing the art immediately after the denial of a preliminary injunction was an 'act of pure pique and revenge,' constituting willful infringement. Due to this willfulness and the need to deter future violations, the court awarded the maximum statutory damages of $150,000 for each of the 45 works, for a total of $6,750,000.
Analysis:
This case is a landmark decision in the application of the Visual Artists Rights Act (VARA) to ephemeral or non-traditional art forms like aerosol art. It firmly establishes that such works can achieve 'recognized stature' and receive full protection under federal law, even if they are temporary or painted on a building slated for demolition. The ruling clarifies that a building owner cannot bypass VARA's specific procedural requirements (written waiver or 90-day notice) simply because the artists were aware of future development plans. The court's finding of 'willfulness' and the subsequent imposition of maximum statutory damages create a powerful precedent, serving as a significant deterrent to property owners and developers who might otherwise destroy works of art without regard for artists' moral rights.
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