The Backstory
VARA, a rarely invoked United States statute, allows certain visual artists to sue for infringement of what are known as “moral rights.” Those moral rights include the right to the attribution and integrity of their artwork.
The law also protects against the destruction of “works of recognized stature.” The artist maintains these rights even if their work is sold or, as in the 5Pointz case, even if the work is painted on someone else’s building.
For many years, there was no acrimony between Jerry Wolkoff, the developer who owned the 5Pointz property, and
the graffiti artists who he allowed to cover his warehouse. The warehouse was curated and organized under the supervision of Jonathan Cohen, who subsequently became one of the plaintiffs. Over time, the building grew into something of a mecca for graffiti artists, many of whom traveled from overseas for the opportunity paint on its walls.
But one night in November 2013, Wolkoff, who had announced that the building would be demolished to make way for luxury apartments, whitewashed the building without specific warning, destroying the graffiti artworks.
A team of 21 graffiti artists—dubbed “aerosol artists” in court documents—sued. They asserted that Wolkoff violated their VARA rights by whitewashing the works that adorned the warehouse walls. The artists charged that the destroyed artworks met VARA’s “recognized stature” requirement in spite of the fact that the artists did not own the 5Pointz property.
The case was initially tried in front of a jury, which overwhelmingly sided with the artists in November of 2017. But shortly before the jury issued their verdict, both sides agreed that the jury’s decision would be advisory and that the judge would have the final say.
Ultimately, that benefited the plaintiffs. The jury ultimately found that Wolkoff had acted willfully and awarded damages for 36 of the 49 individual works that were the subject of the dispute. But Judge Block’s opinion went further than the jury’s decision, holding that Wolkoff was liable for the destruction of 45 of the works. More significantly, the judge found that all of Wolkoff’s violations were willful—so much so that he awarded the
maximum amount of damages available under the statute: $150,000 per piece.
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