Graffiti Artists Use Moral Rights to Prevent Building Demolition

The 7 train subway line that connects Flushing, Queens with Times Square, Manhattan in New York City is known for several special characteristics: it is nicknamed “International Express” because it travels through several ethnic neighborhoods in Queens, it stops at Citi Field (home of the NY Mets) and the United States Tennis Association (where the US Open is played), and it is one of the few elevated subway lines in operation in NYC.  This Kat rides the 7 train daily from Queens to Grand Central Station and she has always been fascinated with the view from the train windows – especially as is passes through Long Island City, where riders are greeted by a spectacular view of the skyline of Manhattan and a view of nearly three full sides of a warehouse complex known as 5Pointz. 

What makes 5Pointz worthy of note is that almost every inch of the buildings that make up the complex is covered by intricately painted graffiti art.  I’ve seen 5Pointz countless times during my commute and still notice something different every time – in part because there are so many works of art to look at and in part because new works are added on a regular basis.  5 Pointz is truly an homage to the genre of graffiti art. 

Unfortunately, the owner of the 5Pointz property plans to tear it down and redevelop the land to accommodate luxury high rise towers, retail space, low income housing (a requirement of the City Council), and art studio space.  The property owner, an individual named Gerald Wolkoff, has also promised to dedicate some exterior walls of the new properties for graffiti.  However, having fresh space on which to create new art does not satisfy the artists who currently have works displayed at 5Pointz.  In response to Wolkoff’s announced plans, a collective of graffiti artists, including the 5Pointz “curator”, Jonathan Cohen (known as “Meres One”), filed a lawsuit against Wolkoff in the US District Court for the Eastern District of New York seeking an injunction preventing the destruction of the buildings. 

Graffiti (also known as aerosol art or street art) has traditionally had the reputation of being limited to scrawled signatures or messages along the lines of “I was here.”  And even as the genre developed to include complex designs, it has remained a form of art that is usually created illicitly without the permission or knowledge of the property owner on which the graffiti is painted.  Illicit graffiti could be, and often is, painted over or removed by the property owner.  The artists have no right to object.  But the graffiti painted at 5Pointz is not typical graffiti art.  The artists explain that Wolkoff gave them permission to paint the 5Pointz site – indeed, Wolkoff even appointed curators to select the best artists to work at the site.  In addition, they claim, because Wolkoff granted permission, they hold moral rights in their works and Wolkoff may not destroy their work without their permission.  In making this claim, the artists are seeking to leverage the limited moral rights granted to artists through a nearly forgotten bit of federal legislation called the Visual Artists Rights Act of 1990 (“VARA”). 

5Pointz as viewed from the 7 train
on this Kat's ride home last night.
Under VARA, the author of a “painting, drawing, print, or sculpture, existing in a single copy” or in a limited edition of 200 or fewer, shall have the right to claim authorship of the work, to disclaim authorship of a work falsely attributed to him or her, and to prevent the credit of authorship over his or her work if that work has been distorted, mutilated or otherwise prejudicially modified.  In addition, the author has the right, “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”

An artist’s right applies even in instances where the work of visual art “has been incorporated in or made a part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work” unless the artist and the owner of the building have signed a written instrument that permits the work to be destroyed, distorted, mutilated, or otherwise modified, by reason of its removal. 

Relying on the relevant portion of VARA, the artists’ Complaint outlines the scenario giving rise to their statutory rights:
Since approximately 1993, Wolkoff has permitted aerosol artists to use the interior and exterior walls of 5Pointz for works of visual art.  […]  In or around 2002, Wolkoff and Cohen agreed that Cohen would take over as the volunteer curator/registrar/director/manager of the aerosol art program at 5Pointz.  Wolkoff gave Cohen keys to 5Pointz and provided several secure spaces in 5Pointz for Cohen to use as an office and to store cans of spray paint, ladders and other painting supplies for Cohen and other artists.  Wolkoff gave Cohen full authority to determine what works of visual art could be painted on 5Pointz, with three restrictions: a) the works of visual art were not to be political; b) they were to contain nothing religious; and c) no pornography was allowed.  Wolkoff directed Cohen to have works of visual art painted on every 5Pointz building.  Wolkoff did not request or require that title to the works of visual art be transferred to him.  Each individual artist, or group of artists, retained all copyrights to his, her or their works of visual art.  […]  Since 2002 the works of visual art on 5Pointz have become one of the foremost collections of aerosol art in the United States, and have resulted in 5Pointz being referred to as world’s [sic] “Graffiti Mecca.”
In addition, the Complaint states that no plaintiff artist has “executed or signed a written instrument that specifies that installation of [the artist’s work] on or at 5Pointz may subject that work of visual art to destruction, distortion, mutilation, or other modification, by reason of its removal.”

Could the artists really prevent Wolkoff from razing the buildings?  There is some precedent that could be extended to apply VARA in the artists’ favor in this case.  In 2006, the US Court of Appeals for the First Circuit determined that VARA does not protect location, even if the artwork was commissioned to be site-specific.  The court held that works covered under VARA can be moved if the move does not constitute "destruction, distortion, or mutilation.”  While the property owner’s real property interest would typically supersede an artist’s moral rights, the property owner might not prevail if the art work is unable to be moved without destroying the work.  Because the 5Pointz artists’ works nearly completely cover the buildings, both inside and out, it would be impossible to preserve or relocate the art works without preserving the buildings in entirety. 

Merpelsy plans to tag a
building in NYC with her
hand-drawn graffiti.
Wolkoff, on the other hand, proclaims that he must be allowed to redevelop his real estate property in accordance with the demolition and construction permits that have been granted by the city.  He explains that he allowed the artists to hone their craft and exhibit their works at the 5Pointz site, but never intended that his permission would nullify his property rights – especially when the cost of maintaining the buildings have become significantly more expensive than the revenues generated.  As a frequent traverser of Long Island City, this Kat has spotted graffiti of lesser quality [like Merpel's, at right] all over buildings in the neighborhood.  Most property owners are forced either to leave the graffiti in place or to expend resources covering over the unwanted paintings.  Perhaps by allowing curated graffiti to be painted on his property, Wolkoff was able to avoid having his property “tagged” with unsavory images and messages while creating public interest in his property.  Some might call him greedy for seeking to destroy a graffiti mecca in order to build a profitable luxury complex, but 5Pointz did not originate as a non-profit organization and Wolkoff never intended his appreciation of graffiti art to convert his property into a museum.  
As an artist by hobby, this Kat sympathizes with the artists of 5Pointz who face the destruction of their unique art works.  Any destruction of one-of-a-kind art work is a loss to society.  On the other hand, if the court interprets VARA to take precedence over real property rights, we can be sure that no other property owner in the US will support graffiti artists the way Wolkoff has.  Graffiti, murals and other forms of art incorporated into or onto building structures will no longer be embraced unless the artists sign releases allowing future destruction for fear that the property owner will lose the right to alter or rebuild the structure.  And artists may be less likely to create authorized street art if they are required to agree that the property owner is permitted to destroy their works along with the property.
While the judge considers this case, he has granted the artists a ten day restraining order prohibiting Wolkoff from demolishing 5Pointz.  This temporary reprieve gives the artists additional time to convince the court that a more permanent injunction is warranted barring destruction of the property – or to give the artists time to raise the funds needed to purchase the property from Wolkoff (a long shot).  In the meantime, Meres One is committed to seeing the proceedings through until the end, saying, “I’m here till the last day – chained to the building is definitely a scenario that might go down if it has to.”
Graffiti Creator here
Cat Graffiti here 
Graffiti Artists Use Moral Rights to Prevent Building Demolition Graffiti Artists Use Moral Rights to Prevent Building Demolition Reviewed by Miri Frankel on Friday, October 25, 2013 Rating: 5


  1. Is that a Wombles skip I see to the left in the picture from 5Pointz, loaded with rubbish?

    Kind regards,

    George Brock-Nannestad

  2. Thanks for the post Miri. Having now seen the artwork in more detail on <a href=">the 5Pointz website</a> I think calling this stuff graffiti seriously undersells it. Charles Saatchi should make an offer on the place!

  3. If VARA applies here, it is interesting to consider how this may affect other types of regularly destroyed and immovable art, for example tattoos.

    A custom tattoo is by definition, a work existing in a single copy. It is also a work of visual art, however I suspect there may be some argument as to whether it would fit within the s101 VARA definition (I would argue it is a form of drawing, being the marking of a two-dimensional surface with ink via the stylus of a tattoo machine needle, much in the way that a graffiti work can be considered a painting, being the application of paint via an aerosol (usually)).

    - The client gives the artist permission to apply the work to their skin, the work cannot be moved, therefore to alter or remove the tattoo (as often now happens) would constitute a violation of the artist's moral right under VARA? Who would be liable? - both the client and the subsequent artist / removalist (?)?


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