Making A Point: Street Artists Prevail In VARA Dispute

This type of claim almost never sees trial, but it resulted in a $6.7 million verdict, all because one of the parties was a jerk.

The historic relationship between artist and real estate developer is rife with conflict and contrasting ethea. Developers renovate properties and raise rents, often evicting artists from their studios in the process. Artists scale fences and embellish blank walls, much to the chagrin of the property owner. On most matters, the two groups just do not see eye to eye.

And, given the general disparity in resources between developers (substantial) and artists (minimal), when a conflict between them reaches the courts, it is more often than not the developer that emerges victorious.

Not this time. In a striking blow, a coalition of aerosol artists, led by Jonathan “Meres One” Cohen, endured an extended, multi-year litigation campaign that culminated in a trial and a healthy $6.7 million verdict in favor of the artists.

The claim, which arose under the Visual Artists’ Rights Act, or VARA, is not of the type that often sees trial. In fact, this type of claim almost never sees trial. The artists had each created aerosol art pieces on the walls of an abandoned development in the once downtrodden and now gentrified neighborhood of Long Island City, Queens, and were now suing Gerald Wolkoff, who sought to destroy the artists’ work as part of his plan to develop high-rise luxury condos on the property.

Wolkoff’s property, which had become well-known to street art fans and others as 5Pointz, was first ensnared in this dispute back in 2002, when his luxury condo plan surfaced. Last month, Judge Frederic Block brought some finality to the trial court proceedings, issuing a ruling from the bench with jury advisement after the parties stipulated to a bizarre late-trial jury waiver.

The ruling held that the artists had met the VARA requirements, the first of which being that the aerosol art pieces at issue — which, as the court notes, “could have filled a wing, if not more, of a museum,” and ranged in content from elephants to skulls to a take on a Van Gogh portrait — were works of “recognized stature” in the art community. Judge Block found the works to easily meet this threshold, citing expert opinions from professors and art appraisers (including one with the incredibly apropos name of Renee Vara) as to the value and renown of the works, and referencing the works’ popularity among tourists, art buffs, and film crews.

Then, the artists had to establish both that the works were destroyed, which was not difficult, and that Wolkoff had run afoul of Section 113(d)(1) of the Copyright Act, which specifically addresses art that has been incorporated into a building, and provides that the destroyer must use good faith efforts to notify the artist and provide them with 90 days to remove or pay for the removal of their artwork (or waive their rights).

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This final element is the one that has been ignored by those who are aghast that a developer incurred seven figures in damages for destroying property that he owned and which had been vandalized by a cadre of spray-can-wielding miscreants. This outrage is misplaced, as Wolkoff could have avoided this entire sorry spectacle simply by notifying the artists, to whom he had a clear conduit through Jonathan Cohen.

But, Wolkoff couldn’t be bothered to do so and, as revealed in litigation, was not in the least contrite about his defiance of the artists’ rights. Which brings us to the most important lesson to be gleaned from this litigation, one that has nothing to do with art law or any type of law, really, but relates instead to what was once maybe a given but is now something that apparently has to be set forth explicitly.

And that lesson, applicable in equal measures in both life and litigation is: Don’t be a jerk! This is particularly true if your conduct is at issue in a federal court case, and even more so if you find yourself on the witness stand. Wolkoff failed on this point in all regards. He did not abide by the rule when he refused to notify the artists about the demolition. And he further violated it when he, during the litigation and as the parties were waiting a scant eight days for the court to issue an order, directed his staff to haphazardly whitewash over most of the remaining artwork at issue and threaten with arrest any of the artists that visited his property. There was no need to do this, of course, as the project was tied up in litigation. It was done, apparently, just to be a jerk.

He further violated this rule over the course of the trial. Indeed, Judge Block specifically identified Wolkoff’s churlish behavior as one of the primary bases for the maxed-out statutory award, finding his conduct “recalcitrant” and “singularly unrepentant.” The court decried Wolkoff’s “throwing paint on” the very works whose condition was at issue in a federal court case while said case was pending as well as Wolkoff’s trial behavior, which included “ignor[ing] or challeng[ing] instructions by the Court[,]” and being “argumentative and prone to tangents and non-responsive answers[.]”

In other words, Wolkoff had not only run afoul of the Copyright Act but had been a jerk while he had did so and then later when the artists whose rights he had violated sought legal redress. The court noted as much, finding: “just as [Wolkoff] ignored the artists’ rights he also ignored the many efforts the court painstakingly made to try to have him responsively answer the questions posed to him.” And this was no mere dressing down or public shaming; the cited conduct directly and significantly impacted the calculation of the millions of dollars in damages awarded. The court comes right out and says as much, indicating that “[i]f not for Wolkoff’s insolence, these damages would not have been assessed.” In straightforward and candid language, Judge Block is basically advising Wolkoff that he could have been on the hook for no more than perhaps a few tens of grand if not for his violation of the above rule. If he had not been a jerk.

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But things played out differently. As Judge Block winds down his elegant and thorough opinion, which bears well the weight of the seven-figure deterrent, he takes a moment to drop the judicial mic, wryly observing the impact of Wolkoff’s behavior on the end result: “Needless to say, he has not helped his case.”


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.