A Federal Judge Has Ruled That The 5 Pointz “Graffiti Mecca” Must Come Down

In a blow to an emerging art form, Judge Frederic Block will rule that property owners can tear down the “5 Pointz.”  Artists had banded together to prevent the demolition, but Block decided that they lacked any right to stop the bulldozers. The area will soon be razed to create room for luxury, high rise apartments.

5 Pointz: From an Abandoned Building to International Art Scene.

For the past two decades, owners Jerry and David Wolkoff have let graffiti artists from around the world use their 200,000 square foot factory building in Long Island as a canvas. The 5 Pointz name for the five-story, block long industrial complex represents the coming together of New York’s five boroughs. The space, however, has outgrown these local roots and evolved into a haven for a burgeoning, international art community. Hip hop, pop and R&B stars, including Doug E. Fresh, Mobb Deep, DJ-JS1, Joan Jett, and Joss Stone, have come to admire its beauty.

More than just a space for artists to ply their trade, musicians, DJ’s, emcees and brake dancers regularly perform at the site. It’s become a flash point for hip hop culture. Filmmakers and photographers document the art works, and tour buses come to soak in the vibrant displays. A volunteer, Jonathan “Meres One” Cohen, has even created a 5 Pointz museum.

Competing Claims of Value

The beginning of the end for 5 Pointz started when a stairwell collapsed in 2009 and caused serious injuries to an artist. City officials investigated and cited the Wolkoffs for code violations, after which they decided to explore options for selling the property. Artists tried negotiating without success to purchase the property, but the Wolkoffs moved ahead with demolition plans. Artists fought back with a lawsuit under the little known Visual Artists Rights Act (VARA).

VARA endows creators with certain “moral” rights to their works.  Moral rights stay with the artist and allow the artists some control over the uses to which their work is put.  Say for example an artist sells a photograph, including the rights to use, sell or reproduce the photograph. The buyer, however, decides to use the photograph in a controversial exhibition insulting religious beliefs.  A country that recognizes true moral rights might give the photographer some recourse against the buyer, even though he sold the economic (i.e. copyright) rights to that buyer.

Some European countries (and Canada) recognize moral rights in much the same manner as they recognize an artist’s economic (copyright) interest in his work.  This is narrower in the U.S., however, which treats moral rights as a separate interest and not part of the traditional rights and remedies under copyright law.  VARA endows creators with the following rights, but only for a narrow class of visual art:

• The right to claim authorship for their creations (“hey, I did this”)
• The right to prevent others from attaching the author’s name to works he/she didn’t create (“but I didn’t do that”)
• The right to prevent others from attaching the author’s name to works that others have alerted or mutilated if that would damage the author’s honor or reputation (“I didn’t do that, and I certainly wouldn’t”)
• The right to prevent alteration or mutilation to an author’s work that would damage his/her honor reputation (“you can’t make spaghetti of my art”)

If you own the right to protect your work’s “morality,” its dignity or author’s reputation, it’s possible to prevent the destruction of works even when others physically own or have the copyright to it. This is the argument the 5 Pointz artists presented Judge Block. They sought to prove the inherent value of the 5 Pointz art to the community.  Art expert Daniel Simmons examined work by graffiti artist Lady Pink and an awe-inspiring mural of a sleeping woman with headscarf by Chilean artists Dasic Fernandez. In the end, Judge Block recognized “street art” as such, citing Banksy as notable example, but ultimately concluded that VARA protection did not extend to “aerosol works.”

“I’m getting the sense that the traditional academic way of looking at things needs to be updated,” Block said.

From 5 Pointz to Art Basel’s Pubic Art Displays

The 5 Pointz story is fascinating, and it got me thinking about how street art compares with the works that will be on display this year at Art Basel Miami.  The essence of the art is that it shares a space with others who interact with it.  Part of a mural’s beauty is in one’s ability to enjoy it just by walking by.  No gallery, no appointment, no price or admission, just a form of communication between artists and art lover.  Sometimes, however, the canvas – a building in many cases – belongs to others.  It will be interesting to see how courts strike a balance between private property rights and the interests of the public in this type of art form, and whether the U.S. moves towards broader recognition of “moral” rights in art.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the shareholder of Good Attorneys at Law, P.A. He graduated from the DePaul University College of Law in 1997 and obtained his L.L.M. in Taxation from the University of Florida.

Contact us toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com

Image by Forsaken Fotos

And you?  What do you think?  Should the building owner in 5 Pointz be able to raze the building without any recognition of what it became?  Did the artists assume that risk?  I would value your opinion.