The 5 Pointz case: Should works of art be protected from destruction?

Street art

The US District Court for the Eastern District of New York has recently issued its decision in the 5Pointz case. The ruling has already attracted significant attention [also The 1709 Blog has discussed it]. The IPKat is now delighted to host the following contribution by Mira T.Sundara Rajan, a law professor and consultant currently based in Brussels.

Here’s what Mira writes:

“Over the past few years, 5 Pointz, arguably America’s most famous site of graffiti art, has become a place to watch for all the wrong reasons.

Would the owner of the property ultimately secure his right to remove the graffiti that had been painted on the walls of the building, with his consent, over a period of more than two decades – finally constituting  what has been called the “world’s largest open-air aerosol museum”? Or would the artists win the right to have their works preserved in spite of the owner’s desire to redevelop the property? The controversy, which had been bubbling for months, finally boiled over into conflict on the night of November 19, 2013. In a bizarre stealth operation, under cover of darkness, the graffiti on the walls of the building was whitewashed. All of the art was effectively destroyed.

The path leading to this outcome was a complex one, with the graffiti artists opposing a powerful property owner in a classic David and Goliath scenario. The building at the site that came to be known as 5 Pointz was first acquired by the current owner, Jerry Wolkoff, in 1971. Some two decades later, Mr. Wolkoff was approached by street artists for permission to paint graffiti on the outer walls, which he granted. The site eventually became an exciting location for street art that was both creative and legal, with emerging plans to establish a museum of graffiti. All of this came to an abrupt end when the graffiti was whitewashed.

Though sudden, this shocking step was not unanticipated. On the contrary, Mr Wolkoff had asserted his intention to redevelop the building over a number of months, even claiming that he had actually intended to do so from the time of the first graffiti paintings in the early 1990s. As Mr Wolkoff’s intentions became apparent, the artists sought protection for their works by various means, but they were ultimately unsuccessful. The New York Landmarks Commission, which has been able to intervene in other situations involving notable public artworks, declined landmark status for these works because they were less than thirty years old. An appeal was made to the most famous of street artists, Banksy, then on a month-long residency in New York, to intervene, and led to some typically laconic words of support; but they garnered little reaction.

The 5 Pointz artists eventually turned to the courts.  To their desperate pleas for help, however, the initial answer was a regretfully sympathetic no – at least, these were insufficient grounds to grant a preliminary injunction preventing the owner of the building from destroying the works while the case was being heard. At the same time, the judge sounded a deliberate and intriguing warning: if Mr Wolkoff went ahead and destroyed the works in the absence of such an injunction, he might well find himself liable for the destruction in future proceedings. In his subsequent actions, shocking as they might seem, Mr Wolkoff simply showed that he was perfectly willing to take this risk.

Kat art

In particular, the judge in the case noted the possibility that at least some of the works of graffiti art might ultimately qualify as works of “recognized stature” under US law. The legal instrument in question is the Visual Artists Rights Act of 1990, a fascinating and unusual piece of American legislation that has the unique purpose of protecting the non-commercial and personal rights of artists. Known in international law as “moral rights,” an awkward translation from the French droit moral, these rights recognize the personal engagement of an artist or author in his or her own work. According to this doctrine, if the work is abused, the harm suffered will be felt, not only by the work, but also, personally, by its creator.

Moral rights have long been a controversial area of the law due, among other things, to the potential for conflict between the moral rights of artists and authors, and the rights of property owners. Indeed, this conflict is precisely what led to the issues at 5Pointz: the artists had painted their work on property owned by Mr Wolkoff. Were Americans ready to accept the proposition that, even if Wolkoff was the legal owner of the property, the presence of artworks implied significant limitations on his ability to deal with that property as he wanted to, even restricting his capacity to redevelop the building?

In US law, only one previous precedent has addressed these issues. In the 1994 case of Carter v. Helmsley-Spear, the Southern District Court of New York formulated a two-pronged test for determining whether or not an artwork is, legally speaking, of "recognized stature.” According to the court in the Carter case, the plaintiff must be able to show that, “(1) …the visual art in question has ‘stature,’ i.e. is viewed as meritorious, and (2) …this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society (p. 325).” This extremely broad approach introduces one technique of potential value: consultation with art experts, or others who may be qualified to comment, in the attempt to gather evidence on the issue of recognized stature.  

The usefulness of this test for the 5 Pointz scenario, or for other situations involving new kinds of artworks, may lie in the breadth with which “expert” opinions can be sought. The test articulated in Carter recognizes, not only art experts, but also, “other members of the artistic community, or … some cross-section of society.” This approach would seem to hold within itself the seeds of the idea that new forms of art may require something more than conventional expert opinions to establish their value. The broad language of the Carter test may provide some means of recognizing the truly new – notwithstanding the rather staid language of the statute itself.

The 5 Pointz judgement made use of this opportunity to assess works of graffiti as artworks of “recognized stature” for the purposes of the Visual Artists Rights Act of 1990, commenting that “even under the most restrictive of evidentiary standards almost all of the plaintiffs’ works easily qualify as works of recognized stature.” The key evidence accepted by the court included the testimony of an art appraiser, Renee Vara, an “expert” in the traditional sense (identified at p. 14); as well as Jonathan Cohen, himself one of the plaintiffs and the accepted “curator” of the 5 Pointz site (p. 30), described by the court as “one of the world’s most accomplished aerosol artists (p. 14).”

But the 5 Pointz ruling not only helps to clarify and strengthen the application of the standard of recognized stature under VARA; it also represents a major milestone in the national and international understanding of the moral right of integrity.

First, damages: the 5 Pointz court assessed what might seem, at first glance, to be an extraordinary sum of damages, $6.75 million. Previously, the largest award in a VARA case was a settlement of $1.1 million to Los Angeles mural artist, Kent Twitchell, whose famed mural of artist Ed Ruscha was, like the graffiti at 5 Pointz, whitewashed; in a surprising twist, the artist has since painted a new one.

The size of the award in 5 Pointz represents the sum total of individual damages for the large number of individual works concerned, awarded at the maximum level allowed for statutory damages. It is clear from the court’s reasoning that one of the strongest factors behind the award was Mr Wolkoff’s attitude, described by the court as “insolen[t],” “unrepentant,” and “problematic (p.49).” In contrast, “the plaintiffs have conducted themselves with dignity, maturity, respect, and at all times within the law (p. 49).” The nighttime destruction of the works of art was breathtakingly audacious, and led the court to see Mr Wolkoff in the worst possible light. As such, this judgement should offer a strong deterrent – or at least, a major incentive to think twice – before proceeding with the destruction of works of art, even where the art is intertwined with property that a person owns.

Secondly, it is curious and satisfying to note that the US is one of the only countries in the world to prohibit explicitly the destruction of artworks. VARA was not the first piece of American legislation to do so; rather, the ancestry of the VARA provision can be traced back to the California Art Preservation Act of 1979, which also protects artworks from being destroyed. The other major jurisdiction that specifically prohibits the destruction of art is India - a principle that was established by a seminal judicial precedent, Amar Nath Sehgal v. Union of India.

This discussion of the 5 Pointz case necessarily leaves a number of tantalizing questions unexplored. Why did the court not grant the preliminary injunction as sought? What is the logical connection between a preliminary injunction and a moral rights infringement, and was this connection given adequate recognition by the court?

…And what about graffiti itself? How does the idea of a moral right against destroying graffiti art sit with the conventions of graffiti artists? “There are rules,” notes Natalie Alcoba in an article on graffiti in Toronto. “The first one is you don’t write on someone else’s work.” This case did not pit graffiti artists against one another; will such a scenario present itself, one day, before the courts?

As a result of the 5 Pointz ruling, the United States finds itself in an interesting position regarding the moral rights of authors. Despite its long history of ambivalence towards moral rights, America now appears to lead the world on preventing the destruction of artworks. Moreover, its approach to punishing destructive acts touches the holy grail of moral rights law: deterrence. By reducing the extent of a country's cultural treasures, the destruction of artworks ultimately impoverishes the public. The goal of American law, like all moral rights provisions, is to prevent harm, since much of the harm caused by moral rights violations is potentially, and practically, irreparable. In this sense, the 5 Pointz decision has moved American law towards broader support for the public interest in art. Will other jurisdictions take note?”