The developer who clandestinely whitewashed the work of graffiti artists at 5Pointz will have to pay the artists $6.75 million in statutory damages for the destruction, according to a landmark appellate court decision this week.
The Second Circuit Court of Appeals issued a decision Thursday that upholds the ruling made by a lower court in 2018 to award $6.75 million to the nearly two dozen plaintiffs in the lawsuit. The plaintiffs include noted artist Jonathan Cohen, a.k.a. Meres One, who was first enlisted by developer Jerry Wolkoff in 2002 to convert a row of dilapidated warehouses on Jackson Avenue in Long Island City under the 7 train tracks into what became a world-renowned hub for graffiti and street art.
The lawsuit was filed under the Visual Artists Rights Act of 1990, which protects public art of "recognized stature."
"Although a work’s short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognized stature," the decision said, citing Christo's and Banksy's works as precedent of temporary public art that achieved "recognized stature."
"I'm not sure what I can do. I don't know," Wolkoff said in a brief phone interview Friday.
His remaining options are to seek a rehearing from the Second Circuit, and ultimately seek to have the US Supreme Court to review the case.
In 2013, Wolkoff decided to demolish 5Pointz and build luxury condo towers on the site. Cohen and a group of artists fought back by trying to have 5Pointz landmarked by the city and sought an injunction to prevent demolition, but ultimately failed while city officials wrangled concessions from Wolkoff, including additional space for affordable housing and artists’ studios.
On November 19th, 2013 -- before Wolkoff had even received permits to proceed with the demolition -- the artists and the world awoke to discover the walls of 5Pointz had been whitewashed overnight. The sudden destruction, with no warning or notice, made it impossible for any of the building's graffiti, paste-up, and stencil pieces to be saved. Cohen and about two dozen other artists sued for not having legal notice of the destruction of their artwork, and Judge Frederic Block (an avowed fan of the art at 5Pointz) issued the $6.75 million judgement in favor of the plaintiffs and called out Wolkoff's "insolence" in the destruction of the art:
"If not for Wolkoff’s insolence, these damages would not have been assessed,” Block said in his 2018 decision. “If he did not destroy 5Pointz until he received his permits and demolished it 10 months later, the Court would not have found that he had acted willfully."
The appellate court also affirmed the district court's awarding of statutory damages, pointedly saying this was in part because of Wolkoff's "pure pique and revenge.”
"Wolkoff whitewashed the artworks without any genuine business need to do so. It was simply, as the district court found, an 'act of pure pique and revenge' toward the artists who had sued him," the decision said. "As the district court also found, 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 whitewashing did not end the conflict in a single evening. The effects lingered for almost a year. The district court noted that 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. Moreover, the mutilated artworks were visible to millions of people passing the site on the subway."
The lawyer for the artists, Eric Baum, said in a statement that they are "thankful and humbled by today’s ruling to uphold the decision by Judge Block regarding their artwork, moral rights and the harm caused by the destruction of the art. It has been a long journey for the Artists. It began with the creation of their art at 5 Pointz and took a turn when their work was ruined. Then came the legal process – which included the trial where Judge Block found in their favor, Defendants’ appeal, and now the culmination with the 2nd Circuit affirming their work, its stature and the damages they have suffered as a result of the destruction of their art."
"The finding is a clear indication these Artists’ work is important and should be respected," Baum continued. "It is also a clear message that nobody is above the law and everyone must be held accountable for their actions."
The 5Pointz luxury condos have been finished, and Wolkoff built an additional 112 units -- 30 percent more than what he originally announced. The project is receiving a 421-a tax exemption, which means 20 percent of the units will be below-market rate.
UPDATE: In a joint statement issued by the artist Jonathan Cohen and longtime 5Pointz advocate Marie-Cecile Flageul, they hailed the appellate decision as "incredible news ending a very trying 7 years legal battle. "
"This confirmation by the second circuit court is a historical victory for all visual artists in the US, but also for our favored artform graffiti. The value of the words and the decision of Judge Block now echoed by the 2nd circuit court gives absolute closure to an entire community who is still mourning the loss of 5 Pointz art collection. The legacy of 5 Pointz we hope is that this elevated artform is now valued and recognized in a court of law as art no less no more," the statement said. "On a personal level this is a validation that as difficult as these past 7 years have been, standing up was the right thing to do and justice prevailed."
