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5Pointz and the Visual Artists Rights Act of 1990

A recent article I co-authored and published in the New York Law Journal recaps and highlights the key takeaways in the federal district court’s decision in Cohen v. G&M Realty L.P. (E.D.N.Y, Feb. 18, 2018), relating to the Visual Artists Rights Act of 1990 (VARA) and the street art on a group of buildings known as “5Pointz” in Long Island City, New York.

In 2013, a group of street artists invoked VARA and sued to prevent the 5Pointz building owner from destroying street art that had been painted on the sides of the 5Pointz buildings with the building owner’s permission. VARA protects visual artists against the intentional destruction, mutilation, or other modification of visual art of “recognized stature.” After the court denied the artists’ motion for a preliminary injunction, but prior to trial, the building owner white washed the street art without ever giving the artists a chance to salvage it. Arguing that the street art was entitled to VARA protection, the artists sued the building owner for damages after the street art was destroyed. After a three-week trial in late 2017, the court found for the artists and awarded them maximum statutory damages of $6.75 million.

Having previously held that some of the street art fell under the purview and protection of VARA, the question at trial was whether and which pieces of street art would satisfy the “recognized stature” criteria necessary to invoke VARA protection. At the heart of the question was how to define “recognized stature,” which is not defined anywhere in VARA.

Ultimately, the court rejected the defendant’s proposition that “recognized stature” should embody the higher standard of academic, scholarly expert consensus and criticized the defendant’s witness for using an “unduly restrictive interpretation of recognized stature that was more akin to a masterpiece standard.” Instead, the court embraced a more populace-based standard that took into account the “significant third-party attention and social media buzz” that the street art generated. Accordingly, the court held many of the pieces of street art in question were determined to be of “recognized stature” and therefore entitled to protection under VARA.

I also discuss the court’s guidance on the factors to be considered in determining the appropriateness of and proper calculation of statutory damages (as opposed to actual damages), and conclude with practical advice to property owners who are in the position of having to remove building art protected by VARA, but do not have the requisite written VARA waiver in hand.

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Author

Carolyn Sha

Associate

Carolyn Sha is an attorney whose practice focuses on commercial real estate transactions with multipartied acquisition financings. Before joining Mintz, Carolyn was a lead associate for a real estate group in New York City.