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VARA Demolishes Property Owner: Second Circuit Affirms VARA Judgment for Street Artists

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On February 20, 2020, the United States Court of Appeals for the Second Circuit decided Castillo v. G&M Realty L.P., holding that aerosol artwork with a short lifespan may still achieve “recognized stature” under the Visual Artists Rights Act of 1990 (“VARA”). No. 18‐498‐cv (L) (2d Cir. Feb. 20, 2020).

The Castillo case involves 5Pointz, an exhibition space for numerous artists. According to the district court, the 5Pointz site was created and owned by Gerald Wolkoff and various affiliated entities (collectively, “Wolkoff”). Cohen v. G&M Realty L.P., No. 1:13-cv-05612, 2018 WL 851374 (E.D.N.Y. Feb. 12, 2018). Jonathan Cohen, a prominent figure in the world of aerosol art, was hired by Wolkoff and tasked with curating works to fill the dilapidated warehouse space. According to the Second Circuit, under Cohen’s direction, the site “evolved into a major global center for aerosol art. It attracted thousands of daily visitors, numerous celebrities, and extensive media coverage.”

Notably, “creative destruction” was a major feature of 5Pointz – art was frequently created and then painted over. The painting process, including who was allowed to cover or destroy the work of another artist, was governed by “an elaborate system of norms,” including permission from Cohen and the consent of the artist whose work was to be overpainted. During its eleven year lifespan, 5Pointz housed approximately 10,650 works of art. When Cohen learned that Wolkoff sought to demolish the site, Cohen banded together with numerous 5Pointz artists, including Maria Castillo, and sued to prevent destruction of the site. After first granting a temporary restraining order preventing demolition, the district court then denied the artists’ petition for a preliminary injunction. Several nights later, Wolkoff deployed a group of workers to whitewash the art, a course of action the district court would later call “an act of pure pique and revenge” toward the artists. Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013). Both the Second Circuit and the district court appeared particularly persuaded by this fact. The Second Circuit would later observe, quoting the lower court, “Wolkoff set out in the dark of night, using the cheapest paint available, standing behind his workers and urging them to ‘keep painting’ and ‘paint everything.’”

“The sloppy, half‐hearted nature of the whitewashing left the works easily visible under layers of cheap white paint, reminding the artists on a daily basis of what had happened to them,” the court wrote. In a later-filed complaint, Cohen became a counter-defendant himself and the case proceeded to the Second Circuit under the name Castillo v. G&M Realty L.P.

Evaluating “Recognized Stature”

VARA was added to U.S. copyright laws in 1990 and grants visual artists certain “moral rights” in their works. See 17 U.S.C. § 106A(a). Under VARA, moral rights afford artists protections of integrity and paternity. First, the statute prevents modifications of artworks that are harmful to the artists’ reputations. Id. § 106A(a)(3). The statute also provides the right to claim authorship and prevent the use of one’s name on a work that the author did not create. Finally, and most significantly here, the statute allows artists to prevent destruction of their work if the work has achieved “recognized stature.” Id.

In its review, the Second Circuit acknowledged that recognized stature is a fluid concept, not explicitly defined within VARA. “The most important component of stature,” the court opined, “will generally be artistic quality.” 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. See Carter v. Helmsley‐Spear, Inc., 861 F. Supp. 303, 324‐25 (S.D.N.Y. 1994), aff’d in part, vacated in part, rev’d in part, 71 F.3d 77. The relevant community, the court reasoned, ought to be the artistic community, art historians, critics, and the like, to ensure that the personal judgment of the court is not the determinative factor in the court’s analysis. When it comes to determining whether a work has achieved recognized stature, VARA makes no distinction between temporary and permanent works, and the Second Circuit saw “no justification for adopting an additional requirement not included by Congress.”

The Second Circuit affirmed the award of $6.75 million in statutory damages against Wolkoff. This award was calculated by multiplying the maximum amount of statutory damages ($150,000) for willful infringement by the number of artworks destroyed (45).

What this means for you:

First, it seems apparent that one’s own determination of the artistic value of artwork should not be relied upon in determining whether the work is protected under VARA as of “recognized stature.” Second, the property owner might have avoided such a substantial award by allowing the artists a reasonable chance to recover or preserve the artwork. Third, the property owner might also have avoided some headaches by obtaining such waivers as are allowed under VARA, especially in connection with the demolition of the building. Fourth, street artists should celebrate this ruling, as it holds that, at least in some situations, street art is protected under VARA.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.