Castillo v. G&M Realty L.P.
In a ruling concerning the Visual Artists Rights Act of 1990 (“VARA”) which grants certain “moral rights” to visual artists, the Second Circuit affirmed a district court ruling that a real estate developer was liable under VARA for $6.75 million in statutory damages after he painted over 45 works of graffiti art at the “graffiti mecca” known as 5Pointz in Queens, New York.
The developer, Gerald Wolkoff, owned a series of warehouses that, under the curatorship of distinguished graffiti artist Jonathan Cohen, was transformed into an exhibition of graffiti art which became a world-renowned center for graffiti art, attracting thousands of visitors each day.
Cohen discovered in 2013 that Wolkoff intended to demolish 5Pointz and build apartments on the site. After unsuccessfully trying to prevent the demolition Cohen and other artists sued Wolkoff under VARA.
VARA provides artists with the right to prevent any intentional destruction of a work of “recognized stature”. For artwork incorporated into buildings, the artist’s rights may be waived only with a signed instrument or, if the work is removable, after providing or attempting to provide the artist with notice of the intended action affecting the artwork.
The district court granted the artists a temporary restraining order to prevent the demolition of 5Pointz. But when the TRO expired, and after the court advised that it would not grant a preliminary injunction, Wolkoff hired painters to whitewash 5Pointz, painting over 49 works of art. Following trial, the district court ruled that 45 of the works had achieved “recognized stature” and that Wolkoff violated VARA by destroying them. The court also determined that Wolkoff’s actions were willful, stating that Wolkoff acted out of “pure pique and revenge for the nerve of the Plaintiffs to sue to attempt to prevent the destruction of their art,” and awarded the artists the maximum statutory damages, amounting to $6.75 million.
On appeal, the central issue was whether the works had achieved “recognized stature.” The Second Circuit held “that a work is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.”
Wolkoff argued that, because the works were temporary, they could not have recognized stature. The Second Circuit disagreed, explaining that nothing in VARA excludes temporary works from being of “recognized stature.” The Second Circuit also rejected Wolkoff’s argument, that the artists knew 5Pointz might eventually be torn down, agreeing with the district court’s observation that Wolkoff made no attempt to satisfy VARA’s explicit waiver or notice requirements.
The Second Circuit further rejected Wolkoff’s challenge to the maximum statutory damages award. Explaining that “a violation is willful when a defendant had knowledge that its conduct was unlawful or recklessly disregarded that possibility,” and Wolkoff deliberately chose not to follow VARA’s notice provision, without any legitimate business reason not to do so.