Small Win for Artists Fighting Against 5Pointz Demolition, But Will It Be Enough?

October 22, 2013

The graffiti artists of 5Pointz—the acknowledged “Mecca of the Aerosol Art World” in Long Island City, Queens— can declare a small victory in their ongoing fight to keep their world-renowned works from being demolished to make way for a new real estate development project.  The artists, led by 5Pointz curator and founder Jonathan Cohen, filed suit in New York’s Federal District Court for Eastern District court on Thursday, October 10, 2013 against G&M Realty LP, the privately owned company seeking to erect two new large apartment buildings on the abandoned industrial building where 5Pointz is located.  The plaintiffs are seeking a permanent injunction preventing the company from demolishing and redeveloping the site.  Last week on Thursday, October 17, 2013 the court granted a temporary restraining order for ten days, preventing landlords Jerry and David Wolkoff from demolishing the building.

For more than a decade, 5Pointz has been a haven for graffiti artists and a destination for tourists and NYC locals.  The site is famous for its lush, colorful artworks decorating the exterior walls of several industrial building at a site in Long Island City, Queens.  The buildings are owned by the Wolkoff family, who initially encouraged Cohen and fellow artists to create the works of 5Pointz for over a decade, however they are now seeking to demolish the buildings to make way for two towers with a combined 1,000 apartments on a three-acre parcel near Citigroup Tower in LIC.  On Wednesday, October 9, 2013 the New York City Council unanimously approved a plan to tear down 5Pointz to make space for the new apartment towers.  Because the proposed tower would exceed the city’s zoning laws, the owners had to go through the city’s land-use approval process.  But, as the building is privately owned, the council was unable to stop the project.

The Wolkoffs had been in negotiations with the city from before Wednesday’s meeting, following discussions with the local community board and Councilman Jimmy Van Bramer, a democrat from Queens.  Prior to the city’s decision, the family had announced week that it would put aside additional space for affordable housing and artists’ studios in an effort to get the $400 million project approved. The Wolkoffs agreed to increase the number of affordable apartments to 210, from 75, and to include 12,000 square feet for artists’ studios, up from 2,200 square feet.  They have also stated that artists will be able to paint on several walls of the new building.  David Wolkoff—principal of G&M Realty, LP—told the NYTimes “the artwork is absolutely fabulous. That’s why we’re asking them to come back to the new building.”

However, the artists of 5Pointz were not going down without a fight.  Cohen dismissed the Wolkoffs’ concessions as a “marketing ploy” and said that the plan will “just destroy more of what made New York what it is. Now it is just boring, full of bland boring towers of boxes of glass.”  Marie Flageul, spokeswoman for 5Pointz, stated that the art of the iconic spot has put Long Island City on the map, drawing tourists and New York locals alike to view the constantly changing artwork.

The complaint filed on Thursday, October 10, 2013 alleges three causes of action: violation of the artists’ moral rights under the Visual Artists Rights Act (VARA) 17 USC 106A; interference with prospective contractual relations on behalf of all plaintiffs; interference with Cohen’s easement.  The complaint demonstrates how the formerly cordial relations between Wolkoff and Cohen fostered the creation of the site and highlights its great artistic value in an effort to advocate for the rights of the artists to keep their work intact.  The complaint states that since 1993, Cohen has “permitted aerosol artists to use the interior and exterior walls of 5Pointz for works of visual art.”  In 2002, Cohen and Wolkoff agreed that the artist could take over as curator of the space.  Wolkoff even created an office and storage space for Cohen in the building and gave him complete creative control over what appeared on the walls, provided that the works did not contain material that was political, religious, or pornographic in nature.  No artists may participate without Cohen’s express approval, and aspiring contributors must be vetted and submit a portfolio before creating work.  As a result of the Wolkoffs’ permission and Cohen’s direction, 5Pointz thrived to become one of the most visited graffiti art sites in the world.  The complaint highlights the artistic value of the works and the site.  Artists make the pilgrimage from around the world (as far away as Kazakhstan, Australia, Japan, and Brazil) for the opportunity to contribute to the artistic endeavor.  5Pointz is listed in New York City guidebooks and hundreds of tourists gather each year to visit the site, especially as it is located close to MoMA PS1.  Cohen also stated that he leads tours for school groups visiting the site and that Donna Karan used photographic murals depicting 5Pointz on the walls of her Madison Avenue, New York City store to serve as the backdrop for her Spring/Summer 2013 collection.

The plaintiffs’ VARA claim received the longest treatment in the complaint.  Enacted in 1990, VARA is a federal act conceived as a way for artists to be guaranteed certain protections of their “moral rights” in their works, such as the right of integrity right of attribution (which allows an artist to disclaim a work), right to the integrity of a work (which allows an artist to prevent a work from being mutilated or distorted), and, in the case of works of visual art of recognized stature, the right to prevent destruction.  In their complaint, the plaintiffs allege that the murals and paintings of 5Pointz are each “works of art” within the scope of the Copyright Act.  Significantly, the complaint catalogues the art of each of the artists involved in the suit and states that the complex contains 350 works of art on its exterior and interior walls.  In listing the works of art at the site, the plaintiffs’ lawyers are careful to point out how many works had been registered or are pending with the Copyright Office.  Citing VARA, the plaintiffs alleged that their honor and reputations as artists will be damaged in the building is torn down, as the works have gained widespread public acclaim.  They claim that they will irreparably harmed if their artworks are distorted and mutilated.  The complaint also points out that they did not sign an instrument that explained that the building may one day be destroyed when they agreed to decorate the walls of the buildings.

The artists have achieved a small victory for now, but what will ultimately become of this lawsuit?  Cases involving public art and conflicts with real estate development projects demonstrate that the removal of artistic works alone based on VARA does not typically help save artworks from destruction. For example, in Carter v. Helmsley-Spear, Inc., three artists filed a lawsuit to prevent a building owner and manager from destroying large, site-specific artworks they were commissioned to create for a warehouse also located in Long Island City.   Outlined in a simple two-page agreement, the artists received $1,000 per week and would own the copyrights to their own works.  Although the lower court granted the artists a permanent injunction, the Second Circuit Appellate Court dismissed the artists’ case, finding that the artworks were “works for hire”— created within an artist’s scope of employment—and as such, they were not protected by VARA.  More recently, in Phillips v. Pembroke Real Estate, Inc., an artist attempted to prevent a manager of a public park from removing several sculptures that he created specifically for the park, including stone structures that were integrated into the landscape.  The artist eventually lost the case on appeal, with the court ruling that his sculpture was “site-specific artwork” and thus, not protected by VARA.  Additionally, a “building exception,” codified in 17 USC §113(d)(1)(a)-(b) of the Copyright Act, makes things difficult for artists.  It applies to works “incorporated in or made a part of a building in such a way that removing the work from the building will cause modification of the work.”  Such works do not get protection from modification if the artist consented to the installation of his work in the building (if before the enactment of VARA) or if the building owner and the artist executed a written acknowledgment that removal of the work may subject it to modification (if after VARA).

However, it appears that the 5Pointz artists understand that this case may call for a power higher than law—PR and public pressure.  The lawsuit is likely as much about stalling the project and creating buzz to increase pressure on the Wolkoffs as it is about winning in court.  As this case goes on, national and international news outlets such as the New York Times, CBS, and even UK’s The Guardian are covering the story of the dispute and lawsuit.  Cohen has even publicly solicited the support of famed street artist Banksy, currently marking up walls across the five boroughs, though he has yet to comment on the situation.  Additionally, this case is peculiar in that the particular renown of 5Pointz may give Cohen and his artists extra leverage most artists lack to enforce their moral rights against real estate developers.

Whatever the outcome, the 5Pointz case demonstrates that New York City must find a way to better address this issue.  As it appears that VARA frequently does not provide sufficient protection in such circumstances, the city must find a way to safeguard artworks and delineate safe spaces, so that interests of all parties are protected and that irreplaceable art—especially in cases where the artists are invited to create the works—will not be torn down or covered over.

As this case is ongoing, please check back for updates.

Sources: Business Insider