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Graffiti Artists Spray 5Pointz Property Owners With Second VARA Suit

By Barry Werbin

Reviving a fight that began 18 months ago, on June 3, 2015, nine "street" artists filed an action in the Eastern District of New York against owners and developers of the so-called 5Pointz property located in Long Island City, alleging that the 2014 whitewashing of their "Aerosol Art Center" prior to developing the property for a luxury high-rise residential development violated their rights under the Visual Artists Rights Act of 1990 or VARA (Section 106A of the Copyright Act).

For well over a decade, some 1,500 graffiti and street artists adorned an old water meter factory with intricate colorful murals and "tags" that became a major tourist destination. Known colloquially as the 5Pointz Aerosol Art Center, the artists had long-time permission from the property owner's principals, Jerry and David Wolkoff, to paint the abandoned building's fa├žade, with only some restrictions on the type of street art so as to keep it in good taste.

When plans to demolish the property and develop the residential project later emerged, and the New York City Landmarks Commission denied protection, a group of the artists filed suit in the fall of 2013 seeking injunctive relief, alleging that the proposed destruction of the art would amount to a VARA violation. VARA provides qualified protections to the author of a work of visual art to prevent the "intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation." VARA further gives such author the right "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."

On the eve of a preliminary injunction hearing, however, most of the art was whitewashed over. The District Court ultimately declined to grant a preliminary injunction, ruling on November 12, 2014 that denial of such relief was warranted because of the "transient nature" of the art based upon the artists' knowledge that the building eventually would be demolished, as well as the availability of monetary relief for damages (which precludes the necessary showing of irreparable harm). The case was nevertheless kept alive for ultimate trial. The court also noted that the issue of "recognized stature," which is not a defined term under the VARA statute, is best determined after the case has been prepared for trial.

In the newly filed action, however, the artist plaintiffs seek only monetary and punitive damages based on mutilation of the art, not destruction. The complaint alleges that "the [2014] whitewashing was entirely gratuitous and unnecessary," that defendants "were far from ready to demolish the buildings in question" and that the whitewashing was "disgracefully crude" and done in an "unprofessional manner which was clearly calculated to cause maximum indignity and shame to plaintiffs." Unlike the section of VARA that requires proof of "recognized stature" with respect to the destruction of a covered work, the new claim avoids that burden but must establish instead that the distortion and mutilation of the artwork were prejudicial to each of the artist's "honor or reputation." The plaintiffs allege such harm, as well as "humiliation, mental anguish, embarrassment, stress and anxiety, loss of self-esteem, self confidence, personal dignity, shock, emotional distress, inconvenience, emotion pain [sic] and suffering and any other physical and mental injuries Plaintiffs suffered due to Defendants improper conduct pursuant to VARA and the common law."

A copy of the complaint is here.5pointz-complaint.pdf

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