5Pointz graffiti has now made an indelible mark on the law and art

The Second Circuit Court of Appeals issued an opinion this week the likes of which no American court has written before. It likely marks the start of a new kind of jurisprudence affirming the value of street art and confirms a dramatic cultural shift that began in the late 20th century.

“We hold that the district court correctly determined that temporary artwork may achieve recognized stature so as to be protected from destruction by [the Visual Artists Rights Act] VARA and that [the artists’] work had achieved that stature,” the opinion states.

The ruling affirmed a landmark 2018 decision awarding street artists $6.75 million in damages for the willful destruction of 45 works of aerosol art in Long Island City, Queens that were displayed on the walls of a building known as 5Pointz.

The person who destroyed the works, New York real estate developer Gerald Wolkoff, had once been a patron of graffiti artists, allowing them to use his derelict buildings as a canvas. For 20 years, artists painted and visitors from around the world came to enjoy an ever-changing exhibit in an otherwise forgotten part of the city.

Ironically, in great part thanks to the graffiti—which is often prosecuted as criminal mischief in other contexts—the neighborhood around 5Pointz in time became hip and property values rose dramatically. Wolkoff decided to turn his warehouses into condos. In 2013, the developer whitewashed 5Pointz while a suit for the right to salvage the art was pending.

Now, a federal appeals court has affirmed that no mistake was made when the lower court found Wolkoff owes prominent street artists damages for his “willful” destruction of work that was recognized by art experts and city dwellers as culturally valuable.

The 5Pointz case was the first graffiti matter to be tried under the Visual Artists Rights Act. Federal district court judge Frederic Block—a novelist and musician in addition to being a jurist—awarded the maximum amount of statutory damages based on Wolkoff’s bad faith, granting $150,000 for each of the 45 works, for a total of $6.75 million.

The artists’ victory was considered a big win for graffiti, not only legally. It was irrefutable evidence that the form had graduated, achieving stature as high art. Individual works—however fleeting—rose in the culture’s estimation, making the artists universal darlings, beloved by museums, galleries, auction houses, and people the world over.

The appeals court just affirmed that stature doesn’t depend on a work lasting—not culturally or statutorily—writing yesterday, “Wolkoff contends that the great majority of the works in question were temporary ones which, for that reason, could not meet the recognized stature requirement. We disagree. We see nothing in VARA that excludes temporary artwork from attaining recognized stature.”

The opinion points out that street artist Banksy is known globally and works on walls subject to overpainting and destruction, just like the 5Pointz artists, yet that has in no way diminished his influence. “Famously, Banksy’s Girl with a Balloon self‐destructed after selling for $1.4 million at Sotheby’s, but, as with Banksy’s street art, the temporary quality of this work has only added to its recognition,” the Second Circuit writes.

Still, if Wolkoff decides to appeal to the Supreme Court, the developer may well find the bench is more sympathetic to the woes of property owners, or so predicts New York copyright attorney Sam P. Israel. He represents street artists in intellectual property disputes. Israel believes in protection for graffiti and says VARA has already helped to provide it.

However, he has little faith in the justices’ ability to appreciate the role of street art in the culture or discern great postmodern works. ”Their idea of art is probably ‘Whistler’s Mother’ in poster form,” the art attorney says disdainfully, referring to an austere and somber 1871 painting by James McNeill Whistler that is anything but avant-garde.

The 5Pointz trial was a first-of-its-kind case that to some extent depends on taste, so Wolkoff could argue that it’s made-up law, essentially. A petition for review might be granted if the high court sees a slippery slope in the making and the justices indeed have the “prosaic” tastes Israel imagines.

The art attorney approves the Second Circuit’s decision but is pessimistic. “If it goes to the Supreme Court, there’s a really good chance it’ll be reversed.”