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Considering the 5Pointz Decision and the Visual Artist Rights Act

Visitors from Seoul, Korea, at the 5Pointz Aerosol Art Center in Long Island City, 2013. Photo by TheeErin via Flickr.

Our President and Board Chair, Michele Tortorelli, draws on her 25 years of experience as a lawyer to share her perspective on a landmark interpretation of artist protection under the Visual Artist Rights Act. 

Last week, Judge Frederic Block, Senior United States District Judge for the Eastern District of New York, handed down his verdict on the compensation that would be awarded to the 5Pointz aerosol artists. For years, Jerry Wolkoff, the owner of the warehouse complex in Long Island City that became known as 5Pointz, permitted and encouraged a group of artists to paint the exterior of the buildings. For many New Yorkers, the 5Pointz paintings were a lively and memorable landmark on their daily commute and a regular destination for tourists and school groups alike. When Wolkoff decided to demolish the buildings and replace them with condominiums, the artists sought legal action to protect their artworks. Block's decision in the Cohen v. G&M Realty case is the culmination of a multi-year legal process. 

On February 12, Judge Block awarded statutory damages in the amount of $6.7 million, to be distributed among the 21 affected artists. His full 100-page opinion, which includes images of the 5Pointz paintings, is well worth a read as a real world example of how the federal Visual Artist Rights Act ("VARA") works and what rights artists have. The VARA was enacted in 1990 and grants artists the rights to prevent intentional modification of their visual artworks and the destruction or mutilation of artworks “of a recognized stature.” These rights can always be waived and artists should be vigilant about making sure that they do not unknowingly waive those rights in written agreements.

Subway Rider was painted at 5 Pointz by London-based Australian artist James Cochran, aka Jimmy CSubway Rider, a mural painted at 5Pointz by artist James Cochran, aka Jimmy C. Photo by Wally Gobetz via Flickr.

Judge Block was appointed by President Bill Clinton in 1994. In sharp contrast to the tone of current political rhetoric, Judge Block's opinion makes clear how much he values and respects the artists and their endeavors, celebrating their work, their diversity, and their immigration status. 

In exercising his discretion to award the maximum statutory damages, Judge Block considered (among other factors) how badly the artists were treated by the developer and how painful it was for them to have their work mutilated and destroyed. In some cases, the work was defaced and whitewashed, but remained visible to millions of people who saw it day after day from the passing 7 train for almost a year. Judge Block wrote, “If not for Wolkoff’s insolence, these damages would not have been assessed. If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully.”

Fressen & Gefressen Werden (Eat and Be Eaten) is a mural by Onur, Semor, Wes21 & KKade
Fressen & Gefressen Werden (Eat and Be Eaten), a mural by Onur, Semor, Wes21 and KKade at 5Pointz. Photo by Wally Gobetz via Flickr

Since the verdict, reporters in the art world and beyond have shared conflicting opinions about whether this represents a victory for artists, or will in the end restrict their access to private sites in the future. Regardless of your opinion, we hope all artists, and especially those who make public or temporary work, will find time to read more about this important case.

Read more:
Judge Frederic Block's opinion in the case of Cohen v. G&M Realty
The New York Times: "Graffiti Artists Awarded $6.7 Million for Destroyed 5Pointz Murals"
Artnet News: "After 5Pointz, Can Artists and Developers Ever Work Together Again?"
Related case in The New York Times: "Brooklyn Lawsuit Asks if Illegal Graffiti Is Protected by Copyright Law"

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Michele Tortorelli is a lawyer in a private practice in Manhattan. Her 25 years of experience is focused on family law, dispute resolution and residential real estate transactions. Michele received her BA from Rutgers University and her JD from Fordham University School of Law. She has been regularly recognized as a best lawyer by Best Lawyers in America, Best Lawyers in New York and by Super Lawyers. Michele has been a member of the Joan Mitchell Foundation Board of Directors and currently serves as President and Board Chair. Michele's passion and appreciation of art was nurtured by her mother who was a dress designer and a docent at the Newark Museum. Her lifelong relationship with art continues with her work at the Joan Mitchell Foundation, with which she shares a strong commitment to the importance of providing direct support to individual artists. Michele lives in Manhattan with her husband, Tom Kearns, Esq.