[Editor’s note: earlier this spring, the United States Court of Appeals for the Second Circuit decided an important case legally protecting works of art, even ephemeral ones. The issue is again resonant in the midst of widespread public debate about whether/when preserving artefacts is important. Darienne Grey reports from New York.]

“When you’re talking about graffiti, all you[‘re] really talking about is someone saying, ‘I was here’.” – DANE 2, aerosol artist.

5Pointz was the largest aerosol art exhibit space in the world for legal graffiti art.  It functioned as a living exhibition space in which viewers had the opportunity to see aerosol artists develop new works.  It housed a vibrant artistic community in which techniques and experiences were passed from one aerosol artist to another.  5Pointz displayed approximately 10,650 works of art over eleven years. The site had a fleeting permanence — works stayed up for a time but eventually scraped and cleaned to make way for new material — which left an indelible imprint on the intersection of art and law.  The unsuccessful fight over the site’s demolition resulted, ironically, in the strongest legal affirmation of artists’ moral rights in U.S. history.

5Pointz was established in Long Island City, Queens, New York in 2002 and destroyed on November 12, 2013. It was a 200,000 square foot, five-floor industrial building. The site shared visitors with MoMA PS1, the nearby Museum of Modern Art’s Queens annex.  Each day, thousands of subway riders saw the site’s art via the nearby elevated train tracks.

5Pointz was a visual cacophony of graffiti, predominantly aerosol works.  Every inch of the building’s external wall was covered with art.  The site’s art employed vibrant colors, rhythmic writing, and animated characters that leapt from the walls.  5Pointz artists were inspired by diverse sources and incorporated comic books, movies, children’s stories, and societal issues into their artwork.  Their artistic styles were diverse as well.  Original artists from the 70’s were celebrated as “old timers” and their classic — often simpler– styles of work were displayed along with newer artists with cutting edge styles. Artists’ styles ran the gamut from figurative to abstract to photo realism to surreal to stenciled celebrity portraits to 3-D illustration.  5Pointz was unique in that it provided a meeting place for an artform that is often solitary.  At 5Pointz aerosol, artists could collaborate on joint works or view others’ work and gain inspiration from fellow artists.  Artists could create art free from the fear of arrest.  5Pointz attracted artists from all over the world.  It is understandable why it has been called “the mecca of graffiti” and “a temple for aerosol art” (as described by Meres One, a.k.a. Jonathan Cohen, who was 5Pointz’s resident curator-artist).

In 2002, Meres One and other artists rented studio spaces in 5Pointz and filled the walls with aerosol art. Meres One began curating 5Pointz in 2004.  Under Meres One’s stewardship, the principle of “creative destruction” reigned supreme at 5Pointz. Generally, works were exhibited anywhere from one day to one month depending on the level of artistry and the number of visitors, before the works were whitewashed and/or removed to allow the exhibition of new works. Works with elaborate planned backgrounds remained for one to two years.  Meres One chose which artists could paint, what they could paint, where they could paint, and how long the paintings could remain. There were 350 to 400 works of art displayed at 5Pointz at any given time.

The property on which 5 Pointz existed was a late 19th Century factory house owned since the 1970s by Jerry Wolkoff, a real estate developer who leased it out to various businesses. In the 1990s he began renting the interior space to artists and, upon request, granted graffiti artists permission to use the exterior space for their work. In 2013, Jerry Wolkoff applied for permits to demolish 5Pointz to build luxury housing,

Upon learning of Wolkoff’s decision, Cohen attempted to stop the demolition.  Ultimately, Cohen and his co-plaintiff 5Pointz artists sought to block demolition by invoking the Visual Artists Rights Act (VARA).  A VARA violation entitles an artist to actual damages and profits or statutory damages.  If the artist proves the violation was willful, then the damages are enhanced.  A violation is willful when a defendant had knowledge that its conduct was unlawful or recklessly disregarded that possibility. VARA sets statutory damages between $750 and $30,000 per work but authorizes damages of up to $150,000 per work if the litigant can prove the destruction was willful.

While the statute is 30 years old, VARA was seldom invoked or enforced.  VARA protects “the public interest in preserving [the] nation’s culture”; prohibits the destruction of artwork that has achieved “recognized stature”; and provides that any intentional or grossly negligent destruction of a visual artwork is a violation of the author artist’s rights. The statute contains specific provisions governing artwork incorporated into a building.  In this case, the United States Court of Appeals for the Second Circuit recognized that under § 113(d), if the art at 5Pointz was incorporated into the site such that it could not be removed without being destroyed, then Wolkoff was required to obtain “a written instrument . . . that [was] signed by the owner of the building and the [artist] and that specifie[d] that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.” Wolkoff never obtained the 5Pointz artists’ written consent.  If, on the other hand, the 5Pointz art could have been safely removed, then Wolkoff was required to provide written notice of the planned demolition and to allow the artists 90 days to remove the work or to pay for its removal. Wolkoff failed to give the artists notice.  Instead, while a preliminary injunction motion was pending, Wolkoff blocked access to 5Pointz and whitewashed its artworks under the cover of night.

Even after destruction, the 5Pointz artists continued their VARA suit against Wolkoff.  After the District Court sided with the 5Pointz artists, Wolkoff appealed the opinion to the Second Circuit Court of Appeals. The main issue on appeal was whether the works at 5Pointz were works of “recognized stature,” and thereby protected from destruction under §106A(a)(3)(B).  The court concluded that a work is of recognized stature when: “[i]t is one of high quality, status, or caliber that has been acknowledged as such by a relevant community. A work’s high quality, status, or caliber is its stature, and the acknowledgement of that stature speaks to the work’s recognition. The most important component of stature will generally be artistic quality. The relevant community will typically be the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts. . . . Expert testimony or substantial evidence of non‐expert recognition will generally be required to establish recognized stature.”

During appeal, the 5Pointz artists employed art expert Renee Vara, who testified to the high artistic merit of the 5Pointz art.  In making its decision, the court also noted Meres One’s selection process, which involved review of a portfolio of an artist’s work and a plan for his or her 5Pointz project, screened for works of stature.The court found: “[a] respected aerosol artist’s determination that another aerosol artist’s work is worthy of display is appropriate evidence of stature. An artist whose merit has been recognized by another prominent artist, museum curator, or art critic is more likely to create work of recognized stature than an artist who has not been screened. This inference is even stronger where, as here, Cohen reviewed a plan for the subject work before allowing it to be painted.”

Additionally, the court found the destruction was willful, noting that Wolkoff was a “a sophisticated real estate developer” who took the risk of VARA damages in order to pursue a lucrative development project. The court noted, agreeing with the lower court’s opinion that “Wolkoff whitewashed the artworks without any genuine business need to do so.  It was simply. . . . an act of pure pique and revenge” and that he “set out in the dark of night, using the cheapest paint available, standing behind his workers and urging them to ‘keep painting’ and ‘paint everything.'”

Finally, on February 20, 2020, the Second Circuit upheld the District Court’s decision affirming the majority of works at issue had obtained recognized stature.  Meres One and the 5Pointz artists were awarded $6.7 million dollars in punitive statutory damages.  This figure was based on Wolkoff’s willful conduct multiplied by the 45 works the court determined had “recognized stature”. Wolkoff was penalized $150,000 for each “recognized stature” work he destroyed.

While 5Pointz no longer exists, its memory lives on.  The Second Circuit’s 5Pointz decision is precedent that validates the moral rights of visual artists in the United States.  Eric Baum, the 5Pointz artists’ attorney, said “This decision ensures that future artists and their moral rights will have the protections that they and their works of art rightfully deserve.” In determining its penalty, the Second Circuit reasoned, “[A] maximum statutory award…could further encourage other building owners to negotiate in good faith with artists whose works are incorporated into structures and to abide by the 90‐day notice provision set forth in VARA when incorporated art can be removed without destruction or other modification.” As Richard Chused, New York Law School Professor noted, “Graffiti has blossomed into far more than spray‐painted tags and quickly vanishing pieces . . . In some quarters, it has become high art.”    Tellingly, in 2016, twenty 5Pointz artists collaborated with the citizenM New York Bowery hotel to create the Museum of Street Art (MoSA).  The artists created new works and referenced the lost art of 5Pointz.  In this way, visitors can relive 5Pointz’s magic and a new generation is introduced to aerosol art.  No one will ever forget 5Pointz was here.

Darienne Grey is an attorney based in New York City. She has an academic background in art history. Views are author’s own.