In this bonus episode, Steve analyzes the recent Second Circuit decision affirming the 2018 decision awarding $6.75 million to the artists of 5Pointz, whose works were whitewashed and torn down by the building’s owner in 2013. To put this important decision into a broader context, we have re-released our April 2018 episode on 5Pointz, where we discuss the district court case in which the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute. In that episode, Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti. They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial.
Photo Credit: Anthony Delmundo/New York Daily News
Photo credit: Emmanuel Dunand/AFP/Getty Images
Photo Credit: Christina Santucci
(Left to right: Marie Cecile Flageul, Jonathan Cohen (Meres One), Renee Vara, Katie Wilson-Milne, and Steve Schindler)
Steve Schindler: Hi. I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: So we’re here today to talk about the decision in the 5Pointz appeal that came down late last week affirming the district court’s February 2018 decision that held that most of the works at the 5Pointz aerosol Mecca in Long Island City were works of recognized stature and protected under the Visual Artists Rights Act of 1990. Back in April of 2018, we were fortunate to have on this podcast three of the people who played an instrumental role in 5Pointz and in the trial. We sat here with Jonathan Cohen, who’s otherwise known as Meres One, one of the esteemed aerosol artists and also curator of the 5Pointz site, Marie Cecile Flageul, who was the event planner at 5Pointz, and Renee Vara, the artist expert in the 5Pointz trial. At the time, I think that we were all somewhat surprised that the artists won a record-breaking award of 6.75 million dollars in damages after the landlord, Gerald Wolkoff, whitewashed the works at 5Pointz. Not surprisingly, Mr. Wolkoff took an appeal of that decision, and last week the Second Circuit affirmed in a unanimous decision. So what was significant about this affirmance? First of all, there aren’t that many VARA trials and VARA cases, and so having such a detailed record and decision on the Visual Artists Rights Act is incredibly useful. And in particular, the Second Circuit looked at this question of whether or not aerosol art, because of its transitory nature, could be considered art of recognized stature under the Visual Artists Rights Act. The court looked at this question and ultimately decided that there was nothing in the statute that spoke about temporary or permanent, and indeed, there was a great deal about street art that has gained certainly a strong following in the art market and also pointed to two artists and works in particular to illustrate their point. Second Circuit noted that the project by Christo and Jeanne-Claude in Central Park known as The Gates would clearly be a work of recognized stature, even though that was by design a temporary work and also postulated that a hypothetical Banksy painting at 5Pointz would clearly be considered to be a work of recognized stature, also indicating that one of Banksy’s works recently sold at Sotheby’s for 1.4 million dollars and it was a work that in fact was designed to self destruct after it was purchased, indicating again that there’s a notion of whether a work is temporary or permanent does not really play into the question of whether or not a work is of recognized stature. On appeal, the Second Circuit reviews questions of law again from the beginning, but with respect to questions of fact, they can only overrule a judge’s ruling if the factual determination is clearly erroneous. And in this case, the court upheld as a matter of law that temporary art work may achieve “recognized stature under the Visual Artists Rights Act.” The court upheld that the works at 5Pointz were works of recognized stature and thereby protected form destruction under VARA. They also recognized that recognized stature is necessarily a, in their words, “a fluid concept” and that the approach in consulting the relevant community ensures that it’s not the court that is making the determinative decision as to whether or not a work is of recognized stature, but rather that that decision is coming from a widely-based community. In addition, the Second Circuit was also asked on the appeal to look at the determination by Judge Block as to whether or not the destruction of the works was willful and whether or not the assessment of the maximum amount of statutory damages of 150,000 dollars per work was permittable under the the statute. And the willfulness is a kind of interesting aspect of this case, because it was pretty clear that Mr. Wolkoff’s decision to whitewash all of the works of art at 5Pointz was based upon his ire probably at being sued by these artists in the first instance. And also, it’s worth just going back procedurally to understand what happened here and why I think the both the district court and the circuit court were so offended by Mr. Wolkoff’s acts. When the artists filed the lawsuit originally, it was with the notion that the destruction of the works were potentially immanent and so the plaintiffs went into court and filed their complaint and also sought and obtained a temporary injunction preventing the destruction of the works. And that temporary injunction normally just stays in place for a period of about 10 days, and then there was a hearing on whether to extend that injunction based on the evidence that was presented to the court. And after a long hearing, the district court decided to deny the plaintiffs’ request for a preliminary injunction pending a final decision of the case. And what happened after the court came down with its decision, within several days Mr. Wolkoff hired a crew to come in and hurriedly whitewashed the works, and it turned out that even though Mr. Wolkoff had represented to the court at the time that the argument was being made about the injunction, that unless he could proceed with demolition immediately, he would be irreparably harmed and he would lose the ability to do the conversion that he wanted to do of the site. As it turned out later, that was false. And it turned out Mr. Wolkoff didn’t actually apply for the permit to destroy the site for several months after the injunction was denied, and I think that contributed to the court’s view that destruction of the works never had to be done and was the basis — one of the bases for the court’s conclusion that the destruction of the works was willful. So ultimately, the Second Circuit reviewed all of the facts surrounding the destruction of the works of art at 5Pointz and found that Judge Block’s decision was not clearly erroneous and therefore would be affirmed. The court also looked at the award of the maximum amount of statutory damages of 150,000 dollars per work and found that Judge Block’s decision awarding the maximum damages was also not erroneous and therefore affirmed that decision as well.
Katie Wilson-Milne: A federal judge in Brooklyn just ruled that aerosol artists were entitled to millions of dollars in damages for the destruction of their graffiti art on a building that they did not own. Today, on the podcast we’re going to talk about that case, the 5Pointz case, and the moral rights at play.
Steve Schindler: So Katie, what are moral rights?
Katie Wilson-Milne: Moral rights are a bundle of rights, apart from economic rights, personal to the creator of a work of art. These rights allow the creator to protect and control what happens to the art regardless of who owns the physical art. Some of these rights are controlling the public display, any modifications, the right to be credited accurately for art you create, and to prevent destruction or mutilation.
Steve Schindler: So, wait a second. We have these in the United States? That feels sort of unconstitutional, doesn’t it?
Katie Wilson-Milne: Yes, that’s been said Steve. And some courts have questioned the applicability of moral rights under the Fifth Amendment which prohibits government takings, and we’ll get to what the U.S. allows in more detail in a minute. But moral rights are more often and for much longer recognized in Europe. In fact they originated in France starting after the French Revolution, which actually makes a lot of sense. France has a very different view of the law’s role to protect individual dignity than in the United States. France’s droit morale laws, which are their moral rights laws, are some of the most expansive and protective. They are perpetual, they are unwaivable, and they are unassignable. And these dignity-based laws protect artists based on the idea that an artist puts some of her or himself into the art they create and that art goes out in the world, but they still have a right to protect the piece of themselves that’s in that art going forward. So how do we come to have moral rights in the United States is the question.
Steve Schindler: Well, Katie in the 1980s the United States was getting a lot of pressure, particularly from the tech industry, to sign on to the Berne Convention for Literary and Artistic Works. The Berne Convention is an agreement among a lot of member nations to provide equal protections and rights across their jurisdictions to the authors of literary and artistic works. The Berne Convention provides creators such as authors, musicians, poets, painters, etc., with the means to control how their works are used, by whom and on what terms.
And the Berne Convention includes the moral rights of authorship and integrity, or the rights to be credited or not credited, and to prevent harm to the art that’s created by the artist. As part of the U.S. finally agreeing to sign on to the Berne Convention in 1989, the United States was required to recognize these two categories of moral rights.
Katie Wilson-Milne: And at first, U.S. law makers seemed to think the U.S. copyright, unfair competition,. trademark, breach of contract, defamation, and privacy laws all together, along with the smattering of state moral rights-type laws, provided sufficient protections when viewed together to comply with Berne, but they really didn’t. And that was highlighted by a case in 1990, a few months before the U.S. adopted its own moral rights legislation, which we’ll discuss in a minute.
In the late 1980s, there was a controversy over a large Richard Serra sculpture located in Federal Plaza in downtown Manhattan. And this controversy exposed that additional legislation would need to be passed to comply with the Berne Convention’s moral rights requirements. The Federal Government had commissioned Richard Serra to create and install and enormous steel sculpture called the Tilted Arc in the middle of Federal Plaza.
Now Federal Plaza, for those of you who haven’t been there, is a very busy federal office complex. There are many employees, maybe 1000s of people, walking back and into work, going home every day, and a significant number of those 1000s of employees didn’t love this Tilted Arc sculpture, because it was making it take a lot longer to get to lunch, to get to the subway, to get home because they had to walk around this gigantic steel sculpture.
Steve Schindler: It’s was also a target for pigeons.
Katie Wilson-Milne: It was a target for pigeons. Suffice it to say it wasn’t well received. And after litigation, seeking to remove the sculpture, and litigation by Richard Serra seeking to keep it in place, a court ordered that it be taken apart and removed, and this was days before the U.S. ceded to the Berne Convention.
Steve Schindler: But one of the interesting things about that case you might remember is that there was no VARA, there was no Berne Convention, so Richard Serra tried to protect his work by asserting rights under the First Amendment, his right to freedom of speech. And that somehow the government was abridging that by removing his work of art, which was a form of speech. The court didn’t buy that for a lot of reasons, and therefore the sculpture came down.
Katie Wilson-Milne: Right. So that case highlighted for a lot of people in the United States and Congress that there might be some additional legislation required to comply with Berne and to actually enforce any moral rights in the United States. So in 1990, the Visual Artists Rights Act was signed into law as an amendment to existing copyright law and provided authors of works of visual art, the rights of attribution and integrity. This is a much more limited moral rights regime than exist in Europe, but it is the first federal law in the United States.
Steve Schindler: And so let’s start with a discussion of what these rights apply to, what kind of works that they apply to because VARA is very specific and it specifically defines the works that get VARA protection which we —
Katie Wilson-Milne: We — we should just say we’re going to refer to the Visual Artists Rights Act as VARA.
Steve Schindler: Yes, as we always do. So the works of art that VARA generally protects are pictorial, graphic or sculptural originals and limited editions up to 200. It doesn’t protect copies and posters and anything relating to merchandising or commercialization of art. So let’s take a look at what are the rights that VARA protects? The first is the right of attribution. So basically attribution rights under VARA means the right to be identified as the author of your own work, to prevent the use of your name as an author on a work that’s not yours.
And also to prevent the use of your name on a work that you created, but that may have been distorted, mutilated, or modified so that the work that remains would be prejudicial to your honor or reputation. There are also two integrity rights that are recognized by VARA the right to prevent the intentional distortion, mutilation or modification of visual art that’s prejudicial to the author’s honor or reputation and the right to prevent any intentional or grossly negligent destruction of a work of recognized stature. So one of the questions is what does it mean to be a work of recognized stature because this is not defined in VARA and courts have struggled with this.
Katie Wilson-Milne: And to determine what harms an artist’s honor and reputation. Those are not technical legal words.
Steve Schindler: Right. So courts generally have held that for recognized stature the artist must show that their art has stature and that the stature is recognized by art experts other members of the art world or some cross section of society. Unlike in Europe, VARA rights survive during the life of the author that can’t be transferred to anyone else, although the author may waive them so that they don’t apply.
Katie Wilson-Milne: Right. You know, these rights could seem kind of un-American, I think, to some people, Steve. I mean that they — they are a right to control what owners do with their private property right?
Steve Schindler: Of course. And I think that’s what courts struggle with. Until recently the general consensus was that there were so many loopholes to VARA, which we’ll talk about a little bit later that it didn’t really provide artists with that much protection. But a recent lawsuit that we’ll talk about today had given VARA some life. But we don’t just want to talk about the legal disputes and issues, we want to tell the story of the artists who created the iconic 5Pointz Aerosol Art Building in Long Island City, it’s meaning to the artistic history of the New York City and ultimately it’s destruction. And then we will interrogate whether VARA or moral rights generally make sense even under the most compelling facts that existed in the 5Pointz case.
Katie Wilson-Milne: So we have three guests to help us tell the story of 5Pointz. The New York Aerosol artist Jonathan Cohen also known as Meres One, Marie Cecile Flageul, who worked with the 5Pointz artists for years and is an artist representative, and Renee Vara who is an art expert and was an expert testifying in the 5Pointz lawsuit at trial. So, 5Pointz was an Aerosol Art Mecca. the building referred to as 5Pointz was originally a factory for water meters built in the 1890s. It had many iterations in its life, from being a vibrant factory to being abandoned, to housing offices and eventually becoming a site for world famous graffiti artists to descend on and paint or write and we’ll hear more about that now.
Jonathan Cohen: So I was painting pieces for the most part illegally. I was doing either tracksides, abandoned buildings, pretty much wherever we could find a space. Some artists took it upon themselves to ask landlords for permission to do their buildings. I didn’t really take that route. And at some point I wanted to try to push my craft. Instead of just doing lettering, I wanted to do more of a production-based wall, and I reached out to several artists asked them where, they told me of a place in Queens called Phun Phactory and I went to this place and I performed my first production, as you would say, which is not only lettering, but background as well.
I didn’t have too much knowledge of it. It was 94 maybe. It was the same location as to what would become 5Pointz. This gentleman who ran it would get artists that were arrested doing graffiti and they would meet there and they would go in the little bus he had and — and clean walls throughout New York. According to him, he had to buff a piece one day, and he saw beauty in it, and he asked the owner if we could let some of the artist doing community service paint murals on this factory. And he didn’t see any wrong, and he let them do it.
And then the Phun Phactory was born and it became a pro-graffiti aerosol art kind of venture. Some artists were skeptical because of that some artist embraced it because there was a lack of walls and Phun Phactory took off. I painted there. You know I did several productions and I soon found that he had pretty much zero knowledge of the art form. The gentleman Pat DiLillo who — who ran that organization. You know, he’d have his personal taste, but he would lean on me for advice and the more time I spent painting there, the more he would lean on me. And I kind of became a subcurator in some form, and at one point, I kind of backed off as well due to personal reasons and stepped away.
2001 I think he had a falling out with the landlord and was asked to leave. And the building started to get bombed and tagged up due to that little squabble they had and the landlord made a public statement that he had nothing against the art, artists, or the art form, but he didn’t want that gentleman running it. Anyone wanting to step up to the plate, feel free to contact him, and he would let it continue.
And several months went by. It wasn’t something that I initially jumped on. I started to weigh ti in my head and think about it. And at that point I reached out to him. We had a quick meeting in the loading dock, a handshake, and the landlord said, “Okay, go ahead. I just don’t want any violence, pornography, or political content.” Fair enough, I got the keys to a little closet, A.K.A. my office, which you know, became headquarters and the program started.
I think it was a Tuesday I took over. He came for a quick site visit to see because he didn’t know me and he wanted to. And he’s like, “when are you going to start something?” I said, “Saturday,” and I made phone calls. That Saturday we did our first event. I think it was about 30 artists came out, which for the time was amazing. I think a good day at Phun Phactory would be maybe two or three artist painting. So to have 30 artists come out in one day and completely pretty much cover the — the ground level around the building he was impressed.
I had no idea what 5Pointz would become. All I knew was that I wanted to come up with a name that didn’t put the graffiti label on the property and didn’t give someone idea, they categorize us. And so — so I was like five boroughs coming to one point: 5Pointz. Sounds good. And it was tough in the beginning. I had resistance from street taggers too like I would get there and the tagger would go over me. So it took a lot of hard work, a lot of covering up, you know, destroyed murals and addressing situations, reaching out to artists, trying to talk to artists that knew artists and getting the respect. Because you have to have ultimately the respect of the street as well as the artists that are going to be performing there otherwise you’re not going to grow.
And once that hard efforts went into play, the artists started to do better work. And the game of aerosol art is competitive and very ego driven, which is good and bad. And due to that, the level of art naturally rose on its own, and as artists started to perform better, I started to realize, you know, what if you give them more time to run? If you’re bringing more viewers and things that fluff an ego, you’re going to see better work and the art work started to get better. The work started to last longer.
In some cases, if the artists that performed amazingly, I gave them the rights to certain walls, like they do it over the next year. And that spread not only through the five boroughs to all — the entire world. And then artists were planning vacations around coming to 5Pointz, to save their money to come to 5Pointz, to leave work on what was a museum. I let everybody paint and I think that was what created the community, and it enabled people to feel comfortable. Some people were – Even enabling everyone to paint, some people were still scared. Like, it was open for them, but they were still scared too because the level rose so much. Obviously, if you’re not good it wouldn’t — it wouldn’t last long it would rotate quicker, but they would come back and push the craft. I saw artists start and grow to become amazing aerosol artists in the 12 years I was there.
Katie Wilson-Milne: So when did — when did 5Pointz take off? I mean when did either of you start to notice that people were coming, spectators were coming, art fans were coming it was —
Jonathan: Clear tour buses. I started to see foot tours, bike tours, tour buses and, like, schools. It was — it was —
Marie Cecile Flageul: Families, but I think what happened in 2009 — so from 2002 to 2009 there was a rapid growth in the quality of the art, in the knowledge of the existence of the building, of Meres as a curator, of 5Pointz being the place you wanted to paint at if you wanted to make a statement. And then in 2009, there was an accident. One of the staircases collapsed. The staircase collapsed April 6 of 2009 so by summer of 2009, Gerald Wolkoff says, “start again. You guys start again.” At that point, I mean I remember that summer and I think Meres slept at 5Pointz for two months.
You still have pictures of him falling asleep in the loading dock next to a ladder because he was getting artists from all over to come they had lift. So they were – and Christian Cortes and one of his and his pieces – which are in the case, did one of his pieces at night, three nights in a row, because he was working on weekdays. So on the lift, with Meres driving the lift, other volunteers – and that’s another thing that started happening, where community support took in. A construction company would stop by and give us five gallons of buff paint.
A graffiti fan who is a super would bring us little pump because the loading dock would get flooded and was never fixed. Everything was done organically and I think that really kind of it was a second life, like 5Pointz took a whole new direction and really starting that moment, the crowds grew rapidly, the amount of schools reaching out asking to do tours and walk throughs, universities, and then tourism was insane . And for tours basically we had an email set up, and I started really getting involved in 2009, and I was answering and scheduling all of it.
Jonathan Cohen: The wall on the side of Davis Street that was elevated above the alongside train, that was a high-profile, in your face spot. So it would change a few times a year and, you know like I said, it evolved. I didn’t go into it having any idea that it would become nearly as large as it did and effect me on an emotional level like a human being would, but it did.
Renee Vara: But a lot of artists, when I interviewed them, they were very cognizant of what wall they were getting, how high profile it was, and like any mural, very focused on site specificity. And that was also about building prestige in their portfolio its like if they got a great wall, then they would do a better work and spend more time on it and more paint and more money and make it a higher kind of quality then a smaller area. And you know, that’s the basic elements to curatorial practice. I mean those are the same fundamentals that we use in a museum or in an art fair or in a gallery, and it was operable there on a day-to-day level. I mean Lady Pink testified that —
Marie Cecile Flageul: Yeah.
Renee Vara : And it’s really incredible to read her testimony because she talked about how that spot faces PS1 and it was kind of like a face-off between the graffiti vernacular art world that she rose up in, that has now become institutionalized, and the institutionalized fine art world, and she knew it and she was playing with that —
Steve Schindler: Yeah, that’s great.
Renee Vara: and it’s really quite amazing to listen to her.
Jonathan Cohen: And one more thing to, on the flip, sometimes the artists, like even Cortes, would come and not want to commit to something amazing, have a bag of scrap paint, and say, “let me get something I could just mess around with. I have the itch.” And we’ll go over it tomorrow. So it was very organic. It was very ever-evolving.
Katie Wilson-Milne: But every artist knew that their work was going to be up for a time.
Marie Cecile Flageul: Absolutely.
Katie Wilson-Milne: There was no dispute or confusion. Now, you’ve talked a little bit about your interactions with the building owner over time, or the landlord, which seemed from what you said so far, pretty positive, right? He gives you this space, he says, “I leave it you. Make your art. I am not going to get involved – “
Marie Cecile Flageul: There was no interaction.
Jonathan: There was very little. I — I talked to him maybe like I could count on him in 12 years how many times we spoke.
Katie Wilson-Milne: So at some point, this sort of hands-off, you do you want to do relationship ends, and that’s in 2013 –
Marie Cecile Flageul: 2013.
Katie Wilson-Milne: So — so tell us what happened in 2013?
Marie Cecile Flageul: So 2009 rebirth of 5Pointz the attention, the foot traffic, the art quality is unstoppable. A huge amount of attention from TV shows, from press and we start doing, on top of the graffiti program, or art program, we start curating events. And we’re representing every element of hip-hop for free for the community every summer and we did up to 48 events a summer.
Katie Wilson-Milne: Tell us about some of the — the high profile?
Marie Cecile Flageul: Yes, some of the highlights.
Katie Wilson-Milne: Yeah.
Marie Cecile Flageul: So Meres, as any true hip-hop head from Queens or Bronx or Brooklyn, did not just do graffiti. He is a break dancer and also dabble little bit with MC’ing. So Dynamic Rockers is one of the biggest old school New York breakdancing crew, we partnered with them. So it started organically where they would come and rehearse in the loading dock. What better background and beautiful art when you are rehearsing and training your crew? And it led to them saying, we were like why don’t you start doing some of your events here rather than struggling to find venues, do it here. So battles, crew battles they started an event called Rep Your Style, where a break dancer could face off with a tap dancer which could face off with ballerina. With jury coming in – renowned dancers. We had people from Alvin Ailey’s company coming as judges, people who were working with Bill T. Jones coming in as judges, concerts.
Steve Schindler: But this was still just the two of you organizing?
Marie Cecile Flageul: Yeah, with — with volunteers. So I basically put a calendar together usually by May, Timeout would pick it up and publish it. And then every week on Thursday Timeout would tweet and remind people what we’re doing. Every event were free, we are not selling drinks or food or any of that. It was all about the art.
Steve Schindler: And you’re not getting paid?
Female Speakers: None of us are getting paid. We are doing it for the love. And that’s the beauty of New York, for us to be able to see a family of two parents, five kids, spending their whole day for free and seeing art being created having their kids learn basic steps of break dancing, and then deciding to stay a little later after they had dinner at the diner for a concert. And so the biggest event was —
Jonathan Cohen: 40 years.
Marie Cecile Flageul: 40 years of hip-hop.
Katie Wilson-Milne: Right.
Marie Cecile Flageul: August 2013, Summer Stage called us and they were like, “Kool Herc wants to perform at 5Pointz.” And we said, okay well Marley Marl is our resident DJ, so he is going to welcome Kool Herc on our behalf. And we hosted over 7000 people, and that was 40 years of hip-hop, and it was published in the New York Times.
Katie Wilson-Milne: There was filming there too right?
Marie Cecile Flageul: Oh yes, a lot. So example, Now You See Me is a movie directed by Louis Leterrier, released in 2013, was institute for three months, production crews, building on the roof, catering and holding was on the fifth floor, fourth floor was a green room and we directed the entire production company, Summit Entertainment, to G&M Realty and he rented the building and was paid for that. Louis Leterrier, the director, hired Meres and a few artists of 5Points as artists on some art he wanted extra on the building, which was done on vinyl and then removed. And Meres and Zimad and a few others did the mural for the movie.
Katie Wilson-Milne: So as 5Pointz was becoming world famous, Long Island City was gentrifying and becoming a hot real estate market. The building owner, Gerald Wolkoff, had been waiting for this moment, and certainly with some help from the fame of the 5Pointz art itself, did the completely unsurprising thing of wanting to develop the property and make a ton of money. How he did this given the history of 5Pointz, though, is a bit more surprising and troubling.
Marie Cecile Flageul: I think it’s important to know that Meres was a resident of Long Island City, so was I.
Katie Wilson-Milne: Okay.
Marie Cecile Flageul: So you have the Long Island City Facebook page etc., and I see that there is a community board meeting hearing at PS1 in the case of “5Pointz G&M Realty variance application.”
Steve Schindler: When — when was this in —
Marie Cecile Flageul: May 2013.
Steve Schindler: Okay.
Marie Cecile Flageul: We have gotten no phone call no conversation with Mr. Wolkoff I found out from a Facebook post. So we’re like okay it’s not a guarantee that he’s getting the variance, but something is happening and of course 5Pointz was extremely important to the community and to us, but Long Island City and the gentrification and over development was something that affected us as residents as well. So we spread the word and we decided to go to the hearing, which was at PS1. The G&M Realty team took three rows between the architect, the consultant, the lawyers. So most of the people who wanted to come and testify could not even enter, and that was a first hearing.
Then there was a second hearing in Sunnyside where a lot of people were mobilized and the committee board ended up voting against granting the variance, but as we all know the CBT recommendation has no value. Then there were meetings between local politician and the Wolkoff team and the local council men wrote a letter or recommendation saying that after meeting with so Wolkoff family, he was confident that the artists were going to be taken care of, that it was going to be a 100% union jobs, and also that affordable housing would increase should the variance be granted and the number units be granted.
Katie Wilson-Milne: Because the proposal was to build condominiums to —
Marie Cecile Flageul: Luxury rentals.
Katie Wilson-Milne: Luxury rentals.
Female Speakers: Luxury rental and to go higher, to give you an idea, if you look at Long Island City from the FDR and you look at CitiBank, which was for us the longest time the highest tower, the variance and the request are for both towers, which was granted, to be higher than CitiBank to give you kind of an idea. So it went to Queens borough president with this letter of recommendation from the president of community board saying, now we are we’re on board with Wolkoff councilman Jimmy Van Bramer, on board with Wolkoff, so Queens’s president granted the variance.
Then we went to department of building, had our hearing. We were told there was going to be a followup — no followup granted. And then we went to city council, where we were told we’re going to get two community hearings, we got one. And there was again a letter of recommendation which stated that some of the gallery space was going to be given to 5Pointz artists, studios were going to be given to 5Pointz artists. So this was all said, but never discussed, agreed, there were never meetings. So it was all news to us and city council voted yes and he got his variance by end of September 2013.
Katie Wilson-Milne: The artists and their supporters did their best to stop the destruction of 5Pointz. There were efforts to buy the building, get it landmark status and figure out ways to remove all the art where possible. And one day the artists learned there was actually another way to save 5Pointz too.
Marie Cecile Flageul: By August some eviction notices were thrown into loading dock, and this attorney who had gone to the loading dock always said, “if you ever have a question, call me, I’ll be more than happy to answer.” So we approached this attorney to ask her what’s going on, so she pro bono represented us in housing court, because we were tenant, free rent tenant, but tenant. So our lease was guaranteed to be honored until December 2013 which is really important as a date because I’d meant that physically we were allowed to be at 5Pointz and to have our program till 2013 December.
Katie Wilson-Milne: And artists were still writing throughout that time –
Marie Cecile Flageul: Yes, absolutely. So she took care of this and, as she was understanding the spectrum and the situationShe basically one day came to the loading dock and she had this bright idea light-bulb moment and she said, “there is a law: VARA. We can probably save and preserve your art under VARA.” So she explained it to Jonathan and there were a few artists in the loading dock, Zimad and a bunch of others. So she started to talk to all of them individually and everybody was like, “there is a law that is saying that we have the right to preserve our art?” And she was like, “yes, there is.” So that’s how the adventure started. And pretty much Jerry Wolkoff celebrated the variance after City Council and the next day he was served with papers that we, a group of artists, had filed in Federal Court.
I think when the variance was granted, it became real for all of us and being explained VARA and this right to preserve art and to prevent destruction of art, it was pretty amazing because you would think because of the art – -trust me most artists don’t want to be in a court room. It was ultimately, it was obviously Jonathan’s decisions because he is the lead plaintiff, Meres One and then a lot of artists were like, “let’s do this.”
I mean I am not going to tell you we had an understanding and we knew that five years later we didn’t know what we were necessarily going for as a length, but I think to think in 1990 that law was passed and created it would have been foolish of us not to actually reach out and file, and the artists were animated about it and nervous about starting a legal procedure, nervous about having to go in court and potentially testify, but animated and hopeful. And we were really told, and the way it was presented to us, we were told that there was good chance we would — if nothing else buy time to maybe document and preserve, but that, it would, you had to go to the law. We had done everything else. So that’s how we kind of came about.
Steve Schindler: So in November 2013, the artists working at 5Pointz learned that the landlord Gerald Wolkoff obtained a variance that would allow him to tear down the existing factory and build luxury apartments. After they had failed to stop this from happening by either obtaining landmark status or even purchasing the building, they finally marched into court in Brooklyn in November of 2013 and asked Federal Judge Frederic Block to issue an injunction under VARA to prevent the destruction of their art.
The plaintiffs in that case were Jonathan Cohen, who you heard from, otherwise known as Meres One and a number of the other artists who had painted on 5Pointz. Gerald Wolkoff and his various companies were the defendants. So there was a preliminary injunction hearing in November of 2013 before Judge Block and at the conclusion of that hearing judge Block denied the plaintiff’s request for a preliminary injunction effectively allowing the landlord to tear down the building and build apartments.
The judge seemed troubled by having to do that because he recognized that this was important art and that these were indeed artists who likely had recognized stature, although he didn’t find it at the hearing. What he eventually found was that under the standard for issuing a preliminary injunction, which requires irreparable harm, which means that money won’t compensate the artists for their loss. He found that in fact money would ultimately compensate the artists for their loses and therefore, that was the main reason for him not granting a preliminary injunction.
He also commented along the way that the art was perhaps transient and recognized that the artists who put the works up had to have had some notion that they were going to be just temporary. None of this however is part of the VARA statute. After Judge Block denied plaintiff’s motion for a preliminary injunction the landlord wasted no time and basically went out the next day, hired a crew with whitewash, and then whitewashed the entire building. And as we’ll hear from our guests, it was whitewashed in a very haphazard manner, which was viewed as very disrespectful by the artists.
Katie Wilson-Milne: And no one knew what was happening.
Steve Schindler: Right. It was done in the middle of the night essentially, and it was done even though there was really no urgency to it. As soon as the judge denied the injunction the landlord went out and essentially destroyed all of the art.
Marie Cecile Flageul: So we get the oral decision on Friday morning. You can tell that people are upset. They are reading, and you know when you read in the newspaper coverage, if you’re not legal, savvy you don’t necessarily understand. So now we have a responsibility, as usual, on a weakened to welcome 100s of 1000 of people that are coming. So last minute we decide to do Show Your Love to 5Pointz Appreciation Day. And we put it together very rapidly, we get a DJ, volunteers we get speakers, and it’s kind of like, let’s get everybody together, let’s be positive, let’s be hopeful, let’s celebrate the art. Nobody could paint, but we were allowed to have music etc.
We decided to put this together, we put it on social media, we shared it on Twitter, etc and then the Friday afternoon a lot of NYD buses show up and barricades are being dropped off all over Davis Street and all around the building. So I reach out to the precinct saying, “What’s going on?” and they’re like, “Well we were being told that you guys are going to riot. We don’t want an Occupy Wall Streets situation.” So I went personally to see the captain and I said, “we’ve been here 12 years there has never been an issue, and I can guarantee you that there is not going to be an issue, but you can’t have barricades and cop cars everywhere. It’s not fair.”
And so I said, “Tell me, what are the perimeters?” He said, “I would like for you guys to be done by 5 p.m. because of sun down.” Done deal. So they did assign a few officers from the precinct who were jamming and listening to music and talking to people and we had a very successful day where people were expressed themselves and kept on signing landmark forms and everybody went home uplifted in some ways. It was realistic, you know, we are all romantics. We are artists too.
And then and then, you know Monday, morning we woke up and we are waiting anxiously about is there a decision in writing from the judge yet. And then Tuesday morning, the 19th of November at 6:30 in the morning, Meres’s phone starts ringing, my phone starts ringing, and we’re being told “5Pointz is white. It’s white.”
Jonathan: We – we raced over there and they were still whitewashing when we got there. They had whitewashed the entire back wall, they did all of Davis Street, they were doing —
Marie Cecile Flageul: Crane Street.
Jonathan: They were just rounding on Crane Street. And I ran up, I stopped the car, and I got out, and I hit the emergency stop, because I knew how to operate the lifts. And then I went to proceed to the next machine that was further down and a cop pulls me over. I didn’t see him and, he was going to arrest me and he‘s like, “you know I could arrest you.” I said, “All I did was hit the emergency stop. All you have to do is pull the emergency brake.” One of his workers had been there and was a fan of us — he took the key so they literally were stuck up there. She taled to the officer, he let me go –
Marie Cecile Flageul: But they were not from the precinct so this is what is interesting –
Marie Cecile Flageul: Too they were not from our — our local precinct. Police protection was granted to Wolkoff and his workers all night. They started around 2’o clock in the morning apparently. And so you had several cars, but they were not from our precinct, so they didn’t know us. And so I called our attorney of course right away then I called the precinct and then the precinct, through radio, told those guys, “it’s time for you to pack it up and go back wherever you came from.”
Steve Schindler: Oh Wow! Where did they come from? Do you know?
Marie Cecile Flageul: From another precinct in Queens.
Steve Schindler: So Judge Block left open in denying the preliminary injunction that if the plaintiffs were able to prove that these were works of recognized stature that he would consider granting damages — money damages to the plaintiffs. So after the case proceeded for sometime eventually there was a trial. At the conclusion of the trial, Judge Block issued his decision granting the plaintiffs 6.7 million dollars for a violation of their VARA rights.
Katie Wilson-Milne: We think the largest damages ever granted under VARA.
Steve Schindler: So when issuing his decision, Judge Block found that the plaintiff artists’ VARA rights had in fact been violated. And as a consequence he awarded them a $150,000 for each of the 45 works that the landlord destroyed for a total of 6.75 million dollars. And it was clear in reading the judge’s opinion that he was influenced by the fact of the landlord’s willful destruction of the works. The fact that the landlord went out and whitewashed the works when there was no really no urgency at the moment to do so had a tremendous effect on the judge.
Now looking at the judge’s two decisions together it’s very hard to reconcile them because initially he was asked to enjoin the destruction of these works. And under VARA that is the remedy if an artist creates a work of recognized stature he has the right or she has the right to go to court and seek an order to preventing the destruction of that work. so it’s just somewhat peculiar and hard to reconcile the fact that Judge Block ultimately found that VARA applied and the artist rights had been violated, but rather than preventing the destruction of the works of art as — as he might have done instead he — he awarded them a hefty amount of damages.
Katie Wilson-Milne: Yeah, and we should add or remind the audience that artists also have the right to go to court to prevent any mutilation or modification of the art if it harms their honor or reputation. So that these two sort of amorphous rights to stop conduct that the artist had, but the judge didn’t want to do that, even though he later found that the VARA rights were in fact violated, and all he could do at that point was pay the artists because the work was gone.
So I think, Renee, we would love to hear from your about your work in the trial and, you know Steve and I have talked about on this podcast, one of the really complex aspects of VARA is this standard called recognized stature, which the statute declines to define or explain. So it’s been left to courts and litigants to try to figure out what it means when something is a work of recognized stature and this thus entitled to protection under VARA the Visual Artists Rights Act. So that was how you came into the case right?
Renee Vara: Right. So I was contacted I guess about four years ago, right?
Marie Cecile Flageul: Yeah, exactly.
Katie Wilson-Milne: So what were you hired to do?
Renee Vara: As an art expert.
Katie Wilson-Milne: To answer the question of stature.
Renee Vara: Of recognized stature and testify for that. But in the end, I helped to assemble the whole kind of team of people I know and had expertise. Because in sorting out recognized stature, I mean, where do you, where do you start? Well I would start with immersing myself in these emails and looking at the kind of cross section of society that was visiting in it and kind of moving beyond the legal records and the depositions and everything like that.
And then just trying to formulate a methodology that I thought would be consistent with those kind of professional practices like connoisseurship, but also I mean one of the things that has been kicked around in conversations about, it’s about the art work, it’s about the art work, it’s about the art work. And rather than just the context of the art work in the artist’s career trajectory. So I basically did a lot of reading and then tried to come up with a methodology that used connoisseurship as a basis, but also looked at different kinds of values like what kind of values do we associate with art? And developed a kind of consistent process with looking at the artist’s career, the artist’s kind of style of material —
Katie Wilson-Milne: For each aerosol artist?
Renee Vara: For each aerosol artist for each art work. And then I interviewed some of them I created dossiers of each one of them, so what were their career highlights, what were their other works that were recognized, who recognized them? So and also a big piece of my original expert testimony was about Jonathan’s role as a curator and how that in and of itself lent significance and stature to the individual art work. Meres became a well know artist and a well known curator because at 5Pointz. I mean he has — he ended up having kind of both of those reputation.
Katie Wilson-Milne: Right.
Renee Vara: So his art work being his art work, but as a curator looking at these artist, and most artists don’t care about other artists quite frankly. They are very into their own craft and everything. And they’re looking at it for reference, but they’re not after looking at it to be a connoisseur. And Jonathan in that process of looking at all these artist and their portfolios and overseeing all this in of itself he became respected as a connoisseur and as an expert in aerosol art. So what he did I just kind of leaned a little bit, I mean, I didn’t really know what the right answer, but I — I knew that there were things we do everyday when we work with emerging artists. When you look at an art work, how do you figure out whether they’re good, better or best? And so putting that kind of lens on, using it and applying it and articulating it in — in a paper, but and you know leaning on the prior case history with the two tiered elements the first was merit talking about what merit meant to me what merit means in the art world to most people and then the second tier was — was it recognized by three communities: one – an art expert i.e., me, two – other art professionals, which also theoretically I applied Jonathan to —
Katie Wilson-Milne: Right.
Renee Vara: But any other art professionals that might have written about him or blogs or creeks or curators, and then the third – it was the cross section of society. And that’s the one that was kind of like, the hardest to interpret, but you know I used a variety of different things there. And that’s where a lot of commentary and I think it’s interesting the thing that keeps on being brought out is the use of social media.
Steve Schindler: Yeah.
Renee Vara: So that was a creative thing that I didn’t know because where is the bar it’s always about like what is the breaking point of when it goes from unrecognized to recognized.
Katie Wilson-Milne: Yeah.
Renee Vara: But I evaluated every art work according to all three and almost every single artist in my mind met all three standards, but the law only requires one. You only need to be recognized by one of the three communities, so that’s what I did.
Katie Wilson-Milne: So Steve this is a kind of a crazy case. What do we make of all this?
Steve Schindler: Well I think that the 5Pointz decision is somewhat emblematic of the way judges have struggled with the interpretation of VARA. Ultimately, it leaves me with a very uneasy feeling, because I think when you look at the judge’s two decisions is decision to deny the artists a preliminary injunction and the decision ultimately having — having allowed the works to be destroyed essentially then giving the artist damages. It’s just very hard to reconcile those two things because ultimately the judge found that VARA applied to these works and that there were works of recognized stature, —
Katie Wilson-Milne: But he wouldn’t prevent it.
Steve Schindler: And under the statute I think he should have prevented them from being destroyed. Now that is a very tough thing for a judge to do, admittedly, because he would essentially be going up against the right of a property owner to develop a building that he owned and that he was entitled to develop under the New York City ordinances and regulation. So it was a tough place for the judge to be in but it’s very difficult to reconcile his — his two decisions.
Katie Wilson-Milne: So maybe this is another case like the Berkshire museum controversy, which we discussed on the earlier podcast where the facts are just so bad. I mean that landlord behaved so poorly; these artists behaved incredibly well. Everything was done with permission, it was iconic art, but the law used to address these terrible facts might not really be the best fit and that’s because, you know, I think we need to talk about how VARA fits into existing U.S. copyright law and how it may not be the best fit.
I mean copyright law in the United States developed to encourage innovation and creation for the public good and it did this by offering artists intellectual properly rights, the idea being that they would be more likely to create and move society forward if they had a limited right to control what happened to their output. It really wasn’t and it isn’t about the artist at all, but in France on the other hand, where the idea of moral rights really comes from, these laws are actually explicitly about protecting the artist dignity with the idea that art is really part of the creator’s identity and that that identity is entitled to protection.
So the copyright schemes of France and the U.S. come from very, very different places and that explains how moral rights evolved. So then VARA comes along and tries to fit this very European style right into the U.S. legal system which is a very private property, individual liberty-oriented system, and into U.S. copyright law, which has nothing at all to do with protecting artists.
Steve Schindler: Right. And even with that said, VARA is still clearly written in a way that has the public in mind. The requirements of recognized stature needed to prevent the destruction of the work of art acknowledges the public interest in preserving the valuable works of art not just for the artist but for the public to prevent distortion or mutilation of works of art under VARA; however the harm to the art must hurt the artist’s honor or reputation and that’s really about the artist. Now in the case of art being placed on buildings which is what we have the law is actually even more confusing.
If a work of art is on a piece of real property that can be removed without being destroyed. the building owner only needs to give the artist 90 days notice and an opportunity to take the work down. If the artist fails to do that, the building owner then can then remove it himself. That seems pretty reasonable to me if we are in the business of granting moral rights. But if a work of art cannot be removed without it being destroyed, then essentially tough luck, unless the artist signed a written waiver of her VARA rights acknowledging that the work might be destroyed in the future, the building owner can’t destroy the work until the artist dies and her VARA rights cease.
Katie Wilson-Milne: That seems a little surprising, given how few people understand the contours of VARA and the general lack of written agreements for anything in the fine arts world, right, Steve? And especially street art. So let me get this right. The building owner would be legally bared from doing anything with the building or repainting it or renovating it if that destroyed the art if this art is of what we call recognized stature right?
Steve Schindler: That’s what the statute says.
Katie Wilson-Milne: And courts don’t really like this rule. So they have tried to get around it in a few ways. One is the general rule, at least in most courts, that VARA does not protect works that were created illegally. So graffiti not permitted by a building owner, unlike in the case in 5Pointz, where it was permitted, is not protected by VARA. Now that’s a rule that we don’t find in the statute itself, but judges have applied because they are very uncomfortable with protecting illegal art.
You also have what’s call the statutory public presentation exception and that is a section of VARA that says modifications to work of art that would otherwise be protected with VARA what occurred just because of its public presentation, meaning how it’s lit or where it’s located, are not protectable under VARA. And so an example of that is a sculpture in a public park that is site specific, and it has to be moved because the park is being reorganized or re-landscaped, a fair reading of VARA would say that’s not a violation of VARA, even though it was originally intended for that space.
Some courts have applied the public presentation exception to exempt all site specific art from VARA where it can’t be removed from the site without destruction. We’re not sure that that’s a faithful reading of VARA but some courts have applied that standard. And of course the recognized stature and honor or reputation standards that you find in VARA to prevent mutilation or a destruction of a work are very tough standards to meet. What does recognized stature mean? What does honor and reputation mean? Those are fact intensive inquiries that can also serve as a bar to VARA protections. And we should also mention that the VARA statute contemplates fair use defenses just like you find in copyright infringement claims.
Steve Schindler: Suffice it to say, there are a lot of ways to get around VARA.
Katie Wilson-Milne: So the 5Pointz decision gives VARA real teeth in a way that these other exceptions have failed to give a teeth and many decisions in the past. And one thing we talked about is why do we think that happened here? And as you said, Steve, the judge was really trying to find a balance between punishing the landlord Jerry Wolkoff for behavior he found reprehensible, which was coming out in the middle of the night and destroying all this art when he absolutely didn’t need to do that. He could have given the artists notice. They could have come to some compromise about trying to save some of the art, and instead you just ruined it all months before that had to happen.
And the judge didn’t like that, and he wanted to punish him. And a way he could punish him was by making him pay 6.7 million dollars. But the judge also really could not find it in himself to tell the landlord that he couldn’t do with his building what he wanted to do with his building. And so you have this sort of uneasy balance, of sort of compliant with VARA, sort of enforcing VARA rights, but not to the full extent of the literal statutory language because courts just feel uncomfortable doing that in the United States.
Steve Schindler: Right. And I think if you read the judges preliminary injunction decision, he really was reaching out to the parties to try to work something out. And I think he thought that by not issuing an injunction that somehow that the landlord would act reasonably, and the artist would continue to act reasonably, and they would work out a solution. And there were solutions to be worked out. It turns out, and there was testimony at the trial, that most of these works could have been removed. The technology exists to remove the works intact from the building and with time, and they had the time, they could have done that. So I think the judge was disappointed that the parties didn’t try to work something out.
Now what he has effectively done, assuming that this holds on appeal, is to give notice to landlords that there are some real teeth to VARA and perhaps encouraging settlements or resolutions in the future, because now artists have the leverage to go to a building owner and say, “I want to figure out a way to save this art, because the alternative for you could be some pretty hefty damages.”
Katie Wilson-Milne: So kind of seems like VARA now is — is an expensive tax, right? I mean that’s how it’s — that’s how it’s applying in this case.
Steve Schindler: Yeah, that’s the way it worked out in this case.
Katie Wilson-Milne: It’s a real estate tax. A really, really high one.
Steve Schindler: And so the cost of doing business, but you know, if you’re developing luxury apartment buildings in New York City, it’s probably not even that significant a tax.
Katie Wilson-Milne: I guess we should also just raise the potential risk, or what some people have said is a potential risk, but you know this could just discourage landlords from allowing street art to occur in New York City, and that doesn’t seem like the desirable result either, right? So now that a landlord knows that, “okay even if I give permission for someone to use a building and paint on it and create this street artscape, unless I get the exact right waiver you know ahead of time and I follow the letter of the law and the waiver says this correct thing, I am stuck. And I’ll have to pay millions of dollars if the work becomes famous or I won’t be able to develop my building.” I can see that, you know, if landlords really become aware of this decision, which I think they will, it may mean less street art for all of us.
Steve Schindler: It may, or it may mean that the landlords have to hire a good art lawyers to draft waivers that will protect them.
Katie Wilson-Milne: Well right. We’re available. We are also pro artist rights, though, so there is a delicate balance here and — and I don’t think this decision resolves that completely.
Steve Schindler: You know but I do think that in the best world you could have a meeting of minds between a landlord who would like to see her building used for street art and an artist who would like to use the building for that purpose who can sit down and work out what would become of the art in the event the use had to be changed.
Katie Wilson-Milne: Yeah more paper we — we encourage more paper.
Steve Schindler: A little a little bit more paper. And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at firstname.lastname@example.org, and if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer Jackie Santos for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.