No Injunction for Graffiti Artists to Stop 5Pointz Demolition

Above the "official" Banksy NY t-shirt
Banksy writes: "And that's it.
Thanks for your patience.

It's been fun. Save 5pointz. Bye"
A group of graffiti artists in New York City recently sued the owner of a group of buildings, known as 5Pointz, in order to stop the owner from razing the buildings to redevelop the site. Proving that artists are indeed left-brained types, these artists creatively leveraged a little-known and even less frequently used law called the Visual Artists Rights Act of 1990 (“VARA”) in their attempt to block the demolition of 5Pointz.  Under VARA, an artist's right to “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation” 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.

Despite support from Banksy (see photo, right), arguably the most famous graffiti artist in the world, the artists of 5Pointz in New York City will be unable to stop property owner Jerry Wolkoff from demolishing the buildings to make way for the new high-rise towers he plans to build in place of 5Pointz.  [IPKat assesses the arguments asserted by the artists and by Mr Wolkoff in the IPKat's earlier post on this case here.] 

The judge initially granted the artists a ten day restraining order prohibiting Mr Wolkoff from demolishing 5Pointz while he considered the artists' request for a more permanent injunction.  However, Judge Frederic Block of the United States District Court for the Eastern District of New York, has now acknowledged that he will not grant a permanent injunction barring destruction of the property.

The New York Daily News reports that Judge Block bluntly stated, “I can’t grant the injunction,” adding, “I love the work and it’s going to tear my heart out to see it torn down, but as a judge I have to apply the law.”

Photo by this Kat in 2010
Photo taken by this Kat in 2013
This Kat is very fond of 5Pointz and its wall-to-wall art display, and will be sad to see it go, but she thinks that the judge has got it right in this case.  While ignorance of the law is never a good defense or excuse, VARA was such an obscure federal law that it would be an injustice to Mr Wolkoff to put the rights of these artists above his right to do as he wishes with his real property.  This is especially true considering that the artists likely did not expect their work to remain displayed at 5Pointz permanently - new works are periodically painted over old ones as new artists apply to display their designs at 5Pointz.  See the Kat's photos, at right and left, for an example of how the south facing wall of 5Pointz has changed between 2010 and 2013. 

Given the significance of this case, this Kat expects that VARA will no longer be considered an obscure, mysterious law - and that property owners will no longer incorporate works of art into their properties until the artists sign VARA waivers. 

No Injunction for Graffiti Artists to Stop 5Pointz Demolition No Injunction for Graffiti Artists to Stop 5Pointz Demolition Reviewed by Miri Frankel on Thursday, November 14, 2013 Rating: 5

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