Note: This piece was originally published on June 23, 2017. It’s been updated to reflect the latest court rulings.
On February 12, Judge Frederic Block ruled that the developer, Jerry Wolkoff, had indeed violated the Visual Artists Rights Act (VARA) and ordered that he pay $6.7 million dollars in damages to the 21 graffiti artists represented in the suit. Mr. Wolkoff may appeal this ruling.
If you ever took the 7 train through Queens before 2014, you probably rode right past 5Pointz. And depending on your artistic leanings, you might have been impressed by the splashes of color and paint, or you might have been upset by the graffiti plastered across a five-story, block-long industrial building. Ah, artistic interpretation!
5Pointz Aerosol Art Center was an outdoor exhibition space in New York City, founded by graffiti veteran Jonathan Cohen. For nearly two decades, it was a graffiti “museum” attracting visitors, artists, musicians, filmmakers, photographers and admirers of all sorts. Brands like Deutsche Bank and Heineken even collaborated with artists for specific advertising campaigns featuring 5Pointz work.
As gentrification swept the city and the housing market demand increased, owner Gerald Wolkoff, who initially gave permission to the artists to paint on his building, whitewashed the graffiti in 2013, upsetting the artists who had curated the mass collection of works. The building was torn down a year later to make way for condominiums.
Should aerosal art be covered under VARA?
While this institution of “aerosol art” no longer exists, it is at the center of a New York court case. The plaintiffs – 23 graffiti artists whose work was displayed at 5Pointz – claim their work deserved special protections under the Visual Artists Rights Act (VARA), and, as such, are seeking damages from Wolkoff and his company, G&M Realty.
Initially, in 2013, the plaintiffs sought a temporary restraining order to prevent the destruction of their murals. After the murals had been painted over, the artists argued they were not given the proper 90-day notice of removal. These motions were ultimately denied. However, when the artists refiled the case in 2015, claiming that VARA was on their side, a judge ruled there was enough evidence to warrant a trial because G&M Realty’s argument discrediting the graffiti as not of “recognizable stature” wasn’t strong enough. The widespread awareness of 5Pointz and the visitors it attracted, coupled with the use of the graffiti in the Heineken and Deutsche Bank advertising campaigns, might have swayed him.
At the center of the current case lie the issues of whether graffiti can be considered visual art of “recognized stature” and whether THIS graffiti is “meritorious” and “recognized” by art experts and the artistic community; if so, then it qualifies for protection under VARA. Depending on whom you ask, the answer varies widely.
The court rulings could have implications moving forward that’d set a precedent for what qualifies as “real art.” Congress debated this precise issue during the passing of VARA but without resolution; if the plaintiffs prove successful in their lawsuit, those who initially opposed VARA will likely again argue that the statute is too far-reaching and broad.
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