When graffiti is art, whitewash is a weapon

Posted: February 21, 2018

Plaintiff attorneys: you might want to reconsider your definition of art. Defense attorneys: be careful what your clients demolish, and how they demolish it. Artists: your community just got bigger.

In a landmark case, 21 graffiti makers in Queens, New York, were awarded $6.75 million last week, four years after their works, housed in a warehouse-turned-international-graffiti-museum called 5Pointz, were whitewashed by the building owner. He wanted to tear down the building and replace it with luxury condos.

After a three-week trial, the jury found the property owner violated the Visual Artists Rights Act, or VARA, which has been used to protect public art of “recognized stature” created on someone’s else property, according to The New York Times.

The ruling by U.S. District Court Judge Frederic Block deemed 45 of the dozens of murals qualified for protection under the law, up from the 36 that the jury identified. The ruling potentially expands the scope of worthy public art and puts property owners on notice that big damages may be in store for those who destroy it. Even when it’s on their own property.

Although graffiti artists have been recognized as deserving protection in the past, it’s the first time graffiti and graffiti artists were protected under VARA, an art lawyer told the Times.

In his ruling, Judge Block took defendant Jerry Wolkoff to task for the way he handled the destruction: “If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.”

According to The Guardian, “5Pointz had been an international graffiti mecca since the 1990s, after previous arrangements allowed street artists legally to make paintings on the giant building and, for a time, allowed artists to live and work cheaply inside. Tourists came from around the world to see the spectacle and New Yorkers saw the towering graffiti art daily from the elevated tracks of the subway train.” One lawyer in the suit called 5Pointz “the world’s largest open air aerosol museum,” according to the Times.

The ruling has major implications for art and artists, writes Jessica Meiselman:

The case is more than a victory for these specific “aerosol artists.” Rather, the judge’s decision widens VARA in favor of artists broadly. For the first time, a court held that VARA’s applicability extended to “temporary works.” Additionally, the court indicated that deeming artwork to be of a “recognized stature” – a requirement for certain VARA protections – may not be as high a bar as earlier cases suggested.

New York Magazine, however, sees an ominous side to the case. It notes the irony of defendant Wolkoff enabling 5Pointz to flourish in the first place. “[I]n retrospect, the only sure way to prevent this conflict was for Wolkoff to have kept his building as a monochrome block.”