## Facts

- A group of aerosol artists, led by Jonathan Cohen (“Meres One”), created and curated large-scale graffiti and mural works on warehouse buildings in Long Island City, Queens, commonly known as “5Pointz.”
- The property owner, G&M Realty L.P. and related entities, controlled by developer Gerald Wolkoff, permitted the site to operate for years and benefited from its public prominence.
- The walls included both short-term rotating areas and longer-lasting areas reserved for higher-regarded works; thousands of works appeared at the site over time.
- As redevelopment plans progressed, the artists sought to protect 49 specific works under the Visual Artists Rights Act of 1990 (VARA), claiming the works had “recognized stature.”
- In October 2013, the artists sued in federal court and sought a preliminary injunction to prevent demolition and destruction of the works.
- The court denied the preliminary injunction from the bench, stating a written opinion would follow; that night, Wolkoff barred access and began destroying the art.
- Within days, workers “whitewashed” the buildings, irreversibly covering the works; the artists were not allowed to remove or preserve works that might have been salvageable.
- The case proceeded to a combined advisory-jury and bench trial; the advisory jury made findings regarding recognized stature and willfulness.
- After trial, the district court found VARA liability and awarded statutory damages totaling $6.75 million for 45 works.

## Issues

1. Whether the aerosol works at 5Pointz qualified as VARA-protected “works of visual art” of “recognized stature,” including works understood to be temporary and installed on building exteriors.
2. Whether the owner’s whitewashing and demolition constituted intentional or grossly negligent destruction of works of recognized stature in violation of VARA.
3. Whether statutory damages were available and, if so, whether the destruction was “willful” such that maximum statutory damages were warranted.

## Decision

- The district court held that 45 of the 49 asserted works were works of recognized stature protected from destruction under VARA.
- The court found defendants intentionally destroyed the protected works by whitewashing and proceeding with demolition-related destruction.
- The court found the violations willful, emphasizing the timing and manner of the destruction immediately after the injunction hearing and the exclusion of artists from the site.
- The court awarded $6.75 million in statutory damages, largely at the $150,000 per-work maximum for willful violations.

## Legal Principles

- VARA grants authors of qualifying visual art a right of integrity, including the right to prevent destruction of a “work of recognized stature,” and imposes liability for intentional or grossly negligent destruction.  
- “Recognized stature” is established by showing (1) the work is meritorious and (2) its stature is recognized by experts, the artistic community, or a cross-section of society; proof may include expert testimony and evidence of critical/public recognition.
- For art incorporated into a building, an owner avoids VARA integrity claims based on later destruction only through a statutory written waiver signed by both the artist and the owner meeting VARA’s requirements; general awareness of potential future demolition does not substitute for the required writing.
- Statutory damages under the Copyright Act apply to VARA violations, including enhanced damages up to $150,000 per work upon proof of willfulness; willfulness may be inferred from deliberate destruction undertaken with awareness of potential legal consequences.

## Conclusion

The court found that numerous 5Pointz works achieved recognized stature and that the owner’s rapid, deliberate whitewashing constituted willful destruction under VARA, justifying a $6.75 million statutory damages award for 45 destroyed works.


Cohen v. G & M Realty L.P., 320 F. Supp. 3d 421 (E.D.N.Y. 2018)