The U.S. Court of Appeals for the Second Circuit recently upheld a verdict for $6.75 million against a New York City real estate developer who willfully destroyed dozens of graffiti artworks at the 5Pointz complex in Long Island City, Queens, New York. The Court found that the real estate developer willfully violated the artists rights under the Visual Artists Rights Act (VARA) of 1990 when he sent a team of workers to whitewash the graffiti artworks from the 5Pointz complex, which was famous for its artwork.

Visual Artists Rights Act of 1990

The federal government created VARA as an extension of the 1976 Copyright Act.  VARA grants statutory moral rights to a visual work. In other words, the artist controls the integrity of the work regardless of if he/she has possession or ownership of the work. Certain public artworks that have a “recognized stature” are protected. VARA only protects certain works – paintings, drawings, prints, sculptures and still photographic image produced for exhibition only. In addition, the works must exist in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. Exceptions to VARA include a written waiver from the author or works made for hire. VARA grants authors in these artworks the following rights:

  • claiming authorship;
  • preventing the use of one’s name on any work the author did not create;
  • preventing the use of one’s name on any work that has been distorted, mutilated or modified in any way that would be prejudicial to the artist’s honor or reputation;
  • right to prevent distortion, mutilation or modification that would prejudice the author’s honor or reputation

Case History

With the owner’s permission, artists from around the world had painted graffiti artwork on a five-story block-long warehouse, named 5Pointz, for over 12 years. The artists transformed the building into a de facto world-renowned graffiti museum.

Then 2013, the real estate developer decided to demolish 5Pointz and build luxury condos on the property. A group of graffiti artists sought an injunction to prevent demolition but were denied. On November 19, 2013, the real estate developer had the artworks whitewashed overnight, prior to receiving the permits for demolition. This sudden destruction, without warning, made it impossible to save any of the artwork. Subsequently, about 24 of the artists sued the developer for the destruction of their artwork without notice under VARA. The district court ruled that the developer acted willfully and awarded statutory damages of $150,000 to each artist. The Court of Appeals for the Second Circuit affirmed. The Court noted that the developer’s whitewashing was “an act of pure pique and revenge”.

In conclusion, a different outcome may have taken place had the real estate developer given notice to the artists and waited to demolish the building until his permits were in place. In this case, the developer learned a $6.75 million lesson in revenge.

Michele Lawson

Michele Lawson is a U.S. Registered Patent Attorney.