What the 5Pointz ruling means for street artists

Long Island City’s 5Pointz, a mecca for graffiti artists, was demolished in 2014. AP Photo/Frank Franklin II

What the 5Pointz ruling means for street artists

A four-and-a-half-year legal battle that pitted street artists against landowners has come to an end.

On Feb. 13, 21 graffiti artists were awarded US$6.7 million in damages after a developer whitewashed works of theirs located on his property.

As an art law attorney and professor, I’ve been following this case closely. Some might wonder whether all graffiti will now be protected, giving street artists free rein to work on any building or public space. Others might wonder what rights building owners have when it comes to dealing with graffiti.

But the most significant aspect of the ruling might be that works of street artists are being granted the same rights as those of established, professional artists.

Fringe artists at a disadvantage

In the art world, not all artists have the same amount of power.

Even successful artists can lack the financial means to protect themselves against art collectors and wealthy players who might try to profit off their work.

But the discrepancy in power is particularly stark in the realm of fringe art, with graffiti artists largely unable to reap rewards from their skills. They usually don’t have access to venues in which to display and sell art, like galleries and auction houses. Moreover, their works are rarely seen in curating institutions, like museums.

They’re considered outsiders: They use the streets as their canvases in order to make their art accessible to the masses and enrich the cityscape.

Not only do these artists often receive little or no profit from their work, but their medium – the walls of private and public buildings – can put them in direct conflict with those who have ample resources at their disposal.

Some street artists intentionally use illegal means, like vandalism, to communicate their message. For this reason, they haven’t always received full protection of the law.

Yet artists do have rights under the law. Should the law protect art created through vandalism? Is it against public policy to protect art stemming from criminal behavior?

A spate of recent cases demonstrates that intellectual property rights do extend to street art. These authors are entitled to rights stemming from trademark law, copyright jurisprudence and even the right of publicity. For example, street artists have sued fashion labels and clothing brands for appropriating their designs, as in the case of Rimes v. Moschino and Aholsniffsglue v. American Eagle. In both cases, the fashion brands ended up settling, paying large fees to avoid liability for infringing intellectual property rights.

However, the unanswered question is whether the canvas for the artwork – like a building – can be protected against destruction. In the case of vandalism, it seems unlikely that a court would protect that art. But it’s never been clear whether art laws would protect legally created street art from destruction and require its preservation.

‘Stature’ gained, but at what cost?

In 1990, after the controversial removal of Richard Serra’s “Tilted Arc,” Congress passed The Visual Artists’ Rights Act, also known as VARA. The commissioned sculpture had been dismantled from Manhattan’s Foley Square after people complained that it disrupted the ability of pedestrians to traverse the plaza.

VARA was the first federal copyright law in the United States to protect artists’ right to have his or her name attached to a work. In addition, works of “recognized stature” – a term that was not defined in the law – would be protected against destruction.

How might this apply to street art? Because VARA was enacted in 1990, it hasn’t been tested many times in court, so it wasn’t clear whether fringe art would receive the suite of protections under VARA and could be considered of “recognized stature.”

The ruling in the 5Pointz case, officially known as Cohen v. G&M Realty L.P., has finally provided some clarity.

In the 1990s, the developer of Long Island City’s 5Pointz industrial site permitted graffiti artists to paint on the walls, creating a space for them to display their works and to discourage illegal vandalism. The complex became a mecca for graffiti art. Its reputation grew, with tourists visiting the site and international street artists adding to the walls. But in 2010 – in order to capitalize on Long Island City’s rising real estate prices – the owner decided he wanted to redevelop the site as a residential complex. This meant demolishing the buildings, and he received a permit to do so.

The complex has since been demolished to pave the way for a housing development. Ezmosis/Wikimedia Commons, CC BY-SA

On Oct. 10, 2013, 17 artists sought a court order to prevent the demolition, invoking their rights under VARA. One week later, the Eastern District Court issued a temporary restraining order prohibiting the owner from altering the building. It was lifted the following month, partly due to what the judge called the “transient nature” of the works. On Nov. 19, 2013, 5Pointz was whitewashed without any notification given to the artists. The artists sued for violation of VARA.

In November 2017, a jury found that the developer violated VARA, destroying public art of “recognized stature” located on his property. This month, the judge awarded $6.7 million to 21 artists whose works were destroyed in 2013. In prior cases, courts determined whether works were “recognized” by considering the opinions of art experts, members of the artistic community or a cross-section of society. This is the first instance in which graffiti was found to be of “recognized stature.”

The burden to a landowner may seem heavy. It isn’t. Owners aren’t required to maintain the art indefinitely. VARA requires a property owner only to provide artists with a 90-day notice of destruction so that artists may remove the works. In this case, the developer simply didn’t provide the artists 90 days.

Ultimately, this case is a cautionary tale to landowners. Once permission to use private property is granted, the landowner may be prohibited from destroying the work for a set period.

Nonetheless, it’s remarkable that street art has reached a level of “recognized stature.” The role of a court in art law matters is not to pass judgments on the quality of art, but rather to protect all art with rights guaranteed under U.S. law. The jury wisely acknowledged changes in our visual landscape and the need to protect new and evolving styles and genres of art.

But while this might sound like a major victory for artists, the decision in the 5Pointz litigation may also harm them. With the burden to protect art, landowners may be hesitant to permit artists to create works on their property. Owners don’t want any limitations on their property rights. Moving forward, landowners will justifiably be cautious, and may even require artists to sign agreements waiving their VARA rights.

It’s remarkable that street art has reached a level of “recognized stature.” But in the process, those artists may find that they have even fewer canvases on which to work.