Update: the verdict came down the night of Tuesday, Nov. 8, 2017 in favor of the artists. Read more here.
Jurors on Tuesday inched closer to a verdict in the 5 Pointz graffiti trial, a case involving a rarely tested statute of the federal Visual Artists Rights Act that may have wide-ranging implications for real estate developers nationwide, according to experts in the areas of art and real estate.
The trial in Brooklyn Federal Court, which began in October, centers on the destruction of mural-sized graffiti — or aerosol art — covering the iconic 5 Pointz building in Long Island City, Queens. More than 20 artists have accused the owner, Jerry Wolkoff, of violating the Visual Artists Rights Act, which protects art of “recognized stature,” when he whitewashed the 45-46 Davis St. building in 2013 and demolished it a year later to make way for residential towers.
A subsection of the Copyright Act, the 1990 Visual Artists Rights provision protects against “intentional distortion, mutilation or other modification,” but has never been tested in court. Experts believe artists in the past may have either settled out of court or neglected to take legal action due to the costly price of litigation, especially for a young or emerging artist.
“If [the artists] win this case, it sets a clear precedent, which is if you deface public art without making sure that it’s OK with the artist, then you might be held liable,” said Nicole Martinez, a managing editor at Orangenius, the publisher of Art Law Journal. “And that can mean fines, and that can mean a whole host of other things, depending on what comes out of this case.”
If artists prevail in the 5 Pointz trial, real estate owners may be obligated to draft wide-ranging contractual stipulations with artists regarding not only safekeeping of the work, but agreements on how to handle it should the property be sold, demolished or renovated. Under Visual Artists Rights provisions, artists can waive their rights when commissioning their art to a developer.
At 5 Pointz, Wolkoff was the rare developer in the real estate industry who willingly allowed street artists to cover the 200,000-square-foot building with colorful graffiti and vibrant murals. As early as 1993, the developer had welcomed the artists, but no contractual agreements are known to have been signed, and the artists themselves often painted over their own work.
David Ebert, an attorney for Wolkoff, did not immediately return calls for comment. Eric Baum, an attorney with Eisenberg & Baum LLP representing the artist, also did not return a request for comment.
“Whether this is a sculpture that’s going to be in the courtyard or a mural on the wall, you can avert a lot of problems if you proactively work with the artist who’s doing the art for you and lay out ahead of time, ‘What happens if I sell the building?’” said Kate Lucas, an attorney at Grossman LLP, a law firm with prior experience in the field of art law. “‘What happens if the work needs to be restored or is damaged and needs to be repaired? Do you want to do the repairs, or do I have the power to do the repairs? What happens if I want to take it down?’”
Other experts point to the challenge of appraising art of such a transient nature like graffiti, which, by definition, is presented on privately owned buildings and public transportation. As developers increasingly commission artists to decorate their walls, and property values have in some cases spiked as a result, the value of the work is frequently in flux, several experts said.
In one of the few cases in which the Visual Artists Rights Act has come before a court, the artist Ken Twitchell successfully sued the federal government after it whitewashed a Los Angeles building that served as the canvas of his 1987 mural “Ed Ruscha Monument.” Ultimately, however, the case was settled out of court for $1.1 million in 2006. Experts believe that if the 5 Pointz artists reign victorious, the real estate developer could be fined in the millions.
Another case involving the artist Katherine Craig and her “Illuminated Mural,” which faces destruction at the hands of Princeton Enterprises, the developer that owns the nine-story building on which the art is presented, is currently pending in U.S. District Court in Detroit.
“It’s going to be a difficult thing, I think, to figure out how to value this kind of work, particularly when it’s not about infringement, but a loss of the work as a whole, completely,” said Lucas.
“In the past, courts haven’t granted these broad-based hearings, but that doesn’t mean they’re not going to start setting that precedent,” added Martinez. “The law was created for a reason.”
A jury verdict is expected later this week in the 5 Pointz trial. Judge Frederic Block, presiding over the case, said he would consider the jurors’ role as advisory, and that he would ultimately make the final ruling.
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