Graffiti Artists Win $6.75M for Property Owner Painting Over Work

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By Anandashankar Mazumdar

Graffiti artists won $6.75 million from a federal court after a Queens property owner painted over their works.

The Visual Artists’ Rights Act of 1990, a federal law protecting visual artwork from destruction, covered the artists’ work, the U.S. District Court for the Eastern District of New York ruled Feb. 12.

The destruction qualified for heightened damages because it was a willful violation, the court said.

The ruling may stand as a warning to property owners who allow street artists to decorate abandoned properties. Owner Gerald Wolkoff allowed a group of graffiti artists to occupy what became known as the 5Pointz Aerosol Art Center in Long Island City for about two decades.

When Wolkoff moved to have the property developed, the group of 21 artists sued and sought a preliminary injunction. The court denied that request but said it would issue a written opinion shortly. Wolkoff painted over the artwork in the eight days between the court’s denying the request and issuing the opinion.

The property owner “remains undeterred, and unrepentant that his thoughtless act violated the law and had a devastating impact on people he claims he was trying to help,” wrote Judge Frederic Block, quoting testimony in which Wolkoff stood behind his decision.

Deterrence Important to Case

VARA protects a creator’s rights of attribution and integrity; intentional destruction, mutilation, or modification of a work of visual art violates that integrity.

Under the law, if a work is part of a building that will be torn down, its creator must have a chance to remove it. But Wolkoff’s hasty whitewashing denied the artists that chance, the court said.

The court also rejected Wolkoff’s argument that any damages should be tied to a valuation of the works. Deterring such behavior, it said, was “perhaps the most important factor” in deciding the case.

“If potential infringers believe that they can violate VARA at will and escape liability because plaintiffs are not able to provide a reliable financial valuation for their works, VARA will have no teeth,” the court said.

Eisenberg & Baum LLP represented the artists. Ingram Yuzek Gainen Carroll & Bertolotti LLP represented Wolkoff.

Cohen v. G&M Realty LP , 2018 BL 46284, E.D.N.Y., No. 13-3230, 2/12/18

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bloomberglaw.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bloomberglaw.com

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