Artists have final victory in a case of destroyed graffiti

The Supreme Court refused to hear an appeal from a New York City developer who had been fined $6.75 million for destroying the works of 21 graffiti artists at a Queens warehouse known as the 5Pointz complex.

The decision Monday shut off any more legal paths for the developer, G & M Realty, which had tried to argue that it was not liable for the destruction of 45 murals in 2013.

The Supreme Court did not explain why it chose not to hear the case, but lawyers for the artists said the decision essentially cemented a landmark ruling by the lower courts that stated graffiti — a typically transient form of art — was of sufficient stature to be protected by the law.

The decision “furthers the idea that street art is to be cherished and protected, not destroyed,” Eric Baum, a lawyer for the artists, said in a statement. “The significance of this decision is that federal law now protects not only artwork exhibited in the Museum of Modern Art or the Louvre but also public mural, created with permission.”

In February, the 2nd US Circuit Court of Appeals affirmed a Brooklyn federal judge’s decision to award the $6.75 million to the artists under the Visual Artists Rights Act. That law has been used to protect public art of “recognised stature” created on someone’s else property.

The law was passed in 1990 and authorizes courts to impose statutory damages of up to $150,000 against the owner of a work of visual art of “recognised stature” if the owner destroys it.

Lawyers for G & M Realty argued that the language of the law was “unconstitutionally vague.” Therefore, forcing G & M to be liable for the art was a violation of the developer’s due process rights, they argued.

Scott Gant, one of the lawyers for the developer, said “counsel and the parties are disappointed” by the Supreme Court’s decision not to hear their petition.

“Whether the critical terms ‘recognised stature’ is unconstitutionally vague was not resolved by the Supreme Court’s decision,” he said.

5Pointz in Long Island City, Queens on March 25, 2010, before the graffiti was painted over and the building was destroyed. Christian Hansen/ The New York Times

The question, he said, “is left to be decided another day.”

G & M Realty was founded by Gerald Wolkoff, who had struck an agreement with graffiti artists to use the derelict warehouse in Long Island City, Queens, as a legal graffiti haven. It was christened 5Pointz in 2002.

Artists from around the world flocked to paint its walls.

But early on a Tuesday morning in November 2013, painters quietly blanketed much of the walls of 5Pointz with whitewash.

At the time, Wolkoff, who had planned to erect luxury apartments, said he respected the artists’ work. He said he decided to paint over the murals to avoid a protracted, painful destruction of the art.

“I am telling you, I did not like what they did — I loved what they did,” Wolkoff, who bought the buildings in 1971, said at the time about the artists. “I cried this morning, I swear to you.”

A civil trial followed in which Wolkoff’s lawyers argued that the buildings were his to treat as he pleased. But the jury found he violated the Visual Artists Rights Act.

In February 2018 a federal judge, Frederic Block, fined Wolkoff $6.75 million and ruled that Wolkoff acted willfully when he destroyed the paintings rather than wait until he had received permits to tear down the buildings.

“If not for Wolkoff’s insolence, these damages would not have been assessed,” the judge said at the ruling.

The $6.75 million was the maximum penalty, based on $150,000 for each of the 45 works the judge deemed worthy of protection. The appeals court affirmed Block’s decision in February.

Wolkoff died in July, two days before his lawyers filed the petition before the Supreme Court. He was 83.

Marie Cecile Flageul, a spokeswoman for the 5Pointz artists, said the last seven years of legal fights had been “trying.”“Seven years later all the art is gone and cannot be brought back,” she said in a statement. But she called the end of the case “a victory for visual artists and their moral rights.”

Donyale YH Reavis, a lawyer who specializes in intellectual property and has followed the case, described it as a “David versus Goliath” battle.

“Artists have historically been viewed and treated as the David in legal scenarios pitting real estate owners against artists,” said Reavis, who is also a lecturer at the University of Pennsylvania Carey Law School.

Their work has been destroyed without compensation, and in court they have often been cast as “villains and criminals,” she said.

The Supreme Court’s decision not to take up the case should embolden artists to see the law as a weapon they can use to obtain damages when work they create legally is destroyed, Reavis said.

“It just took the egregious acts of this particular developer of what constituted a sacred site to graffiti and street artists around the world and the powerful loss of these works, felt by the fans who love them, to finally embolden artists en masse to punch back until justice prevailed,” she said.

© 2020 New York Times News Service