Brooklyn real estate developer Jerry Wolkoff has lost an attempted appeal of a 2018 court ruling in which a judge ruled that he must pay $6.75 million in damages to 21 artists who’d sued him for painting over the graffiti they’d plastered on his 5 Pointz property.
“The 2nd U.S. Circuit Court of Appeals concluded that a judge was correct to award the damages against developers who destroyed [their] aerosol artwork in 2013,” local station WNBC reported last week. “The appeals court said the action violated the Visual Artists Rights Act of 1990, which protects art which has gained recognition.”
Passed in 1990, this law was originally reportedly designed to protect art such as “paintings, sculptures, drawings, prints, still photographs produced for exhibition.”
Wolkoff, a property developer, reportedly purchased 5Pointz in the early 1970s. Two decades later, “he was approached by a group that cleaned graffiti from city buildings and was asked if the vacant structure could be used as a safe place for graffiti artists to display their work,” according to WNBC.
He agreed, and as a result, 5Pointz slowly transformed into a “graffiti mecca”:
“Aerosol artists would travel from around the world to use its walls as canvasses — legally. Busloads of tourists or students on field trips would frequent 5Pointz on a daily basis. It was used as a backdrop for movies and music videos, weddings and concerts,” The Washington Post notes.
But that all changed in 2013 when Wolkoff painted over the graffiti. A year later, he demolished the entire property “to make way for high-rise luxury residences,” according to the Post.
Even though he’d been (and still remains) the owner of the property for decades, the decision sparked a backlash among local artists.
Artist Akiko Miyakami, one of the locals whose work was removed, told the Post that she felt as if she “was raped.”
She and 20 other litigants teamed up afterward and filed a suit against Wolkoff:
That suit was “settled” in 2018 when Judge Frederic Block levied a $6.75 million fine on the Brooklyn real estate developer for his alleged violations of VARA.
“Though Block acknowledged there wasn’t a proven market for these works, he still awarded the artists the maximum statutory damages ($150,000 per destroyed work), because Wolkoff whitewashed the building without giving them the opportunity to document or remove the murals,” Artnet reported at the time.
“In his decision, Block noted that it was ‘to Wolkoff’s delight [that the art at 5Pointz] was perhaps principally responsible for transforming his crime-infested neighborhood and dilapidated warehouse buildings into what became recognized as arguably the world’s premium and largest outdoor museum of quality aerosol art.'”
Wolkoff responded to the ruling by vowing to appeal, and he meant it. Three months after the ruing, he filed an appeal in which he claimed the graffiti wasn’t protected by VARA and accused Block of being biased.
“There are circumstances where ‘both for the judge’s sake and the appearance of justice, an assignment to a different judge is… in the public interest, especially as it minimizes even a suspicion of partiality,'” he wrote.
Two years later, it appears his arguments have fallen by the wayside, much to the thankfulness and joy of the plaintiffs.
In a statement, their attorney reportedly said they’re “thankful and humbled by today’s ruling” and argued the ruling is “a clear indication these artists’ work is important and should be respected.”
Marie Cecile Flageul, a curator who reportedly worked with the plaintiffs added that graffiti has now been “validated” as an “art form which is collected, acquired and showcased in museums and galleries around the world.”
The sentiment on social media appears to be the same:
A happy day for street art. https://t.co/Y6cCxGiTHj
— Ahuva Goldstand (@ahuva_g) February 22, 2020
— Enia Titova (@EniaTitova) February 21, 2020
This is good news. I rolled through LIC most every day for over 10 years on the 7 train, starting in 2004, and 5Pointz was a garden of creativity amid the ever growing glass and steel soulless skyline. https://t.co/BijW5IFeW6
— Buzz Poole (@BuzzPoole) February 21, 2020
Big win for artists today in the Second Circuit’s decision about 5Pointz artwork. This decision confirms that importance of the Visual Artists Rights Act of 1990 #copyright #5Pointz https://t.co/Il5spdgoa1
— Matthew Dowd (@TheRealMattDowd) February 20, 2020
— Dez Dillinger (@BadLuck_DeZ) February 21, 2020
— J Gonzalez-Blitz ???? (@jblitz156) February 21, 2020
Contrary to the latter user’s tweet, there’s nothing to “give back” because the plaintiffs never owned 5Pointz …
That being said, Dean Nicyper, a New York-based lawyer specializing in art law, told The New York Times that the decision against Wolkoff may have gone the other way had he not explicitly given the artists permission to spray his property with graffiti.
He further warned of the “chilling effect” the ruling may have.
“Building owners are going to be reluctant to give permission,” he said.
But perhaps that might be a good thing. If nothing else, it’ll make developers like Wolkoff think long and hard before doing something that they might later greatly regret.
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