An October 2013 blog post on the BLS Library Blog, Visual Artist Rights Act in Federal Court, discussed a federal law suit brought by a group of plaintiff artists, under the Visual Artist Rights Act of 1990, against a defendant real estate developer in the US District Court for the Eastern District of New York. Now nine of the artists, whose spray-paint artwork known as 5Pointz in Long Island City was whitewashed to make way for a residential development, have filed a new federal lawsuit seeking punitive damages. Over 18 months ago, the property owner used “the cover of night” to mutilate what had for years transformed Long Island City “from a virtual wasteland into an attractive place for residential development,” according to the complaint.

The artist-plaintiffs, led by Maria Castillo of Sunnyside, Queens, say they had free reign of 5Poinz through a 1993 deal with property owner Gerald Wolkoff and his company G&M Realty. With only three conditions that there be no politics, no religion, no sex, the artists worked for free retaining the copyrights of their work. One of the artists, Jonathan Cohen, the curator of 5Pointz, was given an office in 2002 and leave to commission works from others. After sale of the buildings to make way for a housing development, Cohen, facing an eviction proceeding,  fired back with a federal complaint in October 2013. He reached a settlement with the defendant requiring him to vacate by Nov. 30. The court ruled on the artists’ motion for an injunction on November 20, but the owners obliterated the art the night before.

The new complaint contends that “the whitewashing was entirely gratuitous and unnecessary” and that the defendants “were far from ready to demolish the buildings in question.” It calls the whitewashing “the replacement of something beautiful with something profoundly ugly”. The plaintiff artists, from NYC and other parts of New York, as well as London, Germany, North Carolina and South Carolina, also seek compensation for the unlawful destruction of their work in violation of the Visual Artists Rights Act, 17 U.S.C. §106A et seq. (“VARA”). In 1990, Congress passed The Visual Artists Rights Act (VARA) to broaden copyright protections to include artists,  recognizing the “moral rights” of artists in a way that the United States had not previously done.

Before the whitewashing of 5Pointz, artists came from around the world to be featured there, and the  “Graffiti Mecca” was the site of several photo shoots, films, music videos and television shows. With the Museum of Modern Art’s P.S. 1 site nearby, visitors were “inexorably drawn” to check out the more than 350 works at 5Pointz. Subway passengers on the 7 train also saw the artwork on their daily commute.

On October 10, 2013, a group of 17 graffiti artists, who operate 5Pointz, a “graffiti Mecca” in Long Island City, NY where aerosol artists from around the globe paint colorful pieces on the walls, filed a 39-page Complaint in the US District Court for the Eastern District of New York against real estate developer G&M Realty LP. The complaint, titled Cohen et al. v. G&M Realty LP et al. seeks an injunction preventing the defendant from demolishing and redeveloping the property. The three counts of the Complaint allege that the proposed demolition would violate the rights of the plaintiffs under the Visual Artist Rights Act of 1990, as well as their contractual rights with the defendant, and the easement rights of the lead plaintiff, Jonathan Cohen. On October 9, 2013, G&M Realty got approval from the New York City Council to demolish the 200,000-square-foot factory building in order to build housing towers in its place. For more on the story, see the NY Times article from earlier this month.

”Aerosol artists have traveled from as far away as Kazakhstan, Australia, Japan and Brazil for the opportunity to paint their works of visual art on 5Pointz,” the complaint states. “5Pointz is listed in every major guidebook covering New York City, and is included in over 100 international travel guides as well.” According to the Complaint, 5Pointz has been a fixture in Long Island City since 1993 when the owner allowed aerosol artists to create pieces on the walls of five lots in Long Island City. In 2002, the lead plaintiff Jonathan Cohen became a curator and manager of the buildings as collective canvases.

The 5Pointz exhibit has garnered multiple news and art features in the press, examples of which were submitted as exhibits to the complaint. There have been numerous movies and TV programs about 5Pointz over the past two decades, and corporations like Donna Karan have used images of the exhibit as backdrops in advertisements. The defendant property owners have put together a plan to raze the old factories and build two residential towers that would be higher than zoning ordinance in the area would normally permit. The buildings would have 1,000 rental apartments, 30,000 square feet of public space and 50,000 square feet of retail space, according to the developers. Cohen contends that hundreds of original and famous artworks will be lost to the demolition.

The case is pending in Brooklyn’s Federal Court before Judge Frederic Block who heard oral argument on October 17, 2013 on plaintiff’s motion for an order to show cause seeking a preliminary injunction. After the hearing, Judge Block granted a temporary restraining order against the developer landlords from tampering with the building. The Court’s decision to grant a 10-day restraining order is the first step toward getting a permanent injunction.

In her law review article, Defining Fashion, Interpreting the Scope of the Design Piracy Prohibition Act, 73 Brooklyn L. Rev. 728 (2008), Elizabeth F. Johnson, Brooklyn Law School Class of 2008, discussed the Visual Artists Rights Act (“VARA”). She cited Phillips v. Pembroke Real Estate, 459 F.3d 128 (1st Cir. 2006), as an example of how courts have narrowly interpreted an aesthetic term defined in a statute. In that case, a sculptor brought suit seeking to prevent the destruction of his “public sculpture park” relying in part on VARA which protects “work[s] of visual art” against destruction in certain circumstances. The court held that VARA did not protect the park as a whole, taking a formalistic approach in finding that the park was not “visual art” under VARA.