April 27, 2018
Last November, Sold Magazine published an article about graffiti as artwork and the 5Pointz art space and trial. Sold had asked RPJ Partner Mark H. Moore to explain the application of the Visual Artists Rights Act to graffiti art and, more specifically, developments in the Cohen et al v. G&M Realty L.P. lawsuit challenging the destruction of that art at the 5Pointz space by its property developer. (Read the original article here.)
On November 7, 2017, a federal jury, acting in an advisory capacity to federal judge Frederic Block, found 5Pointz developer Jerry Wolkoff liable for illegally destroying the graffiti. Judge Block issued his binding ruling on February 12, 2018, concurring with many of the jury findings and ordering the defendants to pay 6.5 million dollars in compensatory damages to 21 graffiti artists for the defendants’ destruction of their artwork.
On April 3, Sold published a follow-up article on the 50-page decision to highlight the 10 most salient takeaways. Its author, Joanna Pan, asked Mr. Moore to weigh in again on two matters: the nature of the jury’s advisory status to the judge and what the court decision could mean for the relationships between property developers and graffiti artists moving forward. On the latter Mr. Moore stated:
“It is certainly possible that developers will simply try to avoid problems by prohibiting graffiti, rather than inviting artists to create art while attempting to follow the rules under VARA. On the other hand, the requirements for preserving an owner’s right under VARA are rather straightforward: an owner can protect his or her interests by obtaining written consent to removal from the artists before the graffiti art is created. Finally, an owner reading Judge Block’s decision might be impressed by the potential for public acclaim and transformation of a property which might follow a successful partnership with graffiti artists.”