5Pointz

The building once known as 5Pointz was a block-long warehouse structure in Queens, NY. During the ‘90s, the area was rundown and crime-riddled. As a way to discourage vandalism to the building, the owner allowed graffiti artists to paint on the walls, giving them a canvas to display their works. Ultimately, the 5Pointz building became well known among graffiti artists and tourists and artists traveling from all around the world to add their art to the structure. For almost 20 years the developer and the artists existed this way. However, wanting to take advantage of rising real estate prices, in 2010 the owner of the building decided to redevelop it as a residential complex. The owner ultimately obtained permits to demolish the buildings and redevelop the parcel.

The Litigation

In October, 2013, a group of graffiti artists brought suit seeking an injunction preventing demolition of the structure. The artists claimed that any destruction of the street art they created violated the Visual Artists Rights Act (VARA), which provides certain artists rights over work even if it is not their property. The rights provided by VARA are referred to as “moral rights.” These rights include the right to the attribution and integrity of their artwork and also against the destruction of “works of recognized stature.”

 

A temporary restraining order was initially granted preventing the owner from destroying the structure. However, that order was lifted in November, 2013 and the owner immediately whitewashed the building without any prior notice to the artists. The artists then sought damages under VARA for the destruction of their works, which they claimed were “works of recognized stature” under the statute.

In November 2017, the case was tried to a jury. The artists introduced the opinion of an expert who submitted detailed findings regarding the skills of the plaintiff artists, the notoriety and importance of 5Pointz to graffiti artists and the public and the growing academic and professional art market interest in graffiti art to support the claim that their art constituted “works of recognized stature” under VARA. The court ultimately agreed, marking the first time that graffiti art was afforded protection under VARA. The jury determined that the developer violated VARA by willfully destroying the art on the property and awarded a total of $6.75 million to the plaintiff artists.

Takeaways

The 5Pointz case demonstrates a few important points landowners should consider. First, once a landowner allows use of private property for the display of public art, the landowner might be prohibited from destroying that work. VARA provides that a property owner must give at least 90 day notice to artists before destruction of their works so the artist can remove or reclaim the art. Failure to provide this notice, like the 5Pointz developer, can prove disastrous.  So, landowners must be aware of the rights of artists they allow on their property.

Second, 5Pointz recognizes graffiti street art as a work of recognized stature which thus implicates VARA and the artist’s moral rights. However, not all street art would likely be considered “of recognized stature.” The key is landowner acceptance of the art, providing the artists a canvas with permission. Unwanted “art” like vandalism, tagging, gang signs and racist graffiti would certainly not fall within the same umbra as, say, mural art.

Photos courtesy of Wikimedia Commons