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Jury Finds Against Building Owner in 5 Pointz VARA Case

November 9, 2017

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<p style="text-align: justify;">5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals.  The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects.</p>
<p style="text-align: justify;">But eventually Wolfkoff decided to sell the warehouse to housing developers.  The artists filed suit under Visual Artists Rights Act (VARA) in <em style="color: #333333; font-weight: 300;">Cohen v. G&amp;M Realty.  </em></p>
VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes.  VARA grants two primary rights:
<ul>
<li>The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.</li>
<li>The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work.</li>
</ul>
<p style="text-align: justify;"><span style="font-weight: 300;">The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti.  Judge Frederic Block, in federal court in Brooklyn, <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/11/5-Pointz-TRO-decision.pdf">5 Pointz TRO decision</a>, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute.</span></p>
<p style="text-align: justify;">Last month the case went to trial, and this week the <a href="http://www.nydailynews.com/new-york/5-pointz-artists-awarded-damages-whitewashed-graffiti-article-1.3617903">jury returned its verdict</a>, finding in favor of plaintiff.  The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.”  It seems they reached different decisions for different works, and awarded a variety of damages.  The entire verdict should be released shortly.</p>
<p style="text-align: justify;">And there is an interesting quirk: the parties agreed the jury verdict will be "advisory" and that the Judge will render the final decision -- so we will be certain to report in the future on the final outcome.</p>
Please e-mail <a href="mailto: mbono@wcmlaw.com">Mike Bono</a> with any questions or for more information.

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