5Pointz Opinion: Maximum Statutory Damages Awarded to Aerosol Artists; Additional Clarity on “Recognized Stature” Standard

by Megan E. Noh and Christopher J. Robinson

On February 12, Senior U.S. District Judge Frederic Block of the Eastern District of New York issued an important and long-awaited decision in the highly-publicized “5Pointz” case. See Cohen et al. v. G & M Realty L.P. et al, 1:13 -cv-05612-FB (E.D.N.Y. Feb. 12, 2018) (the “Opinion”). The action was commenced in 2013 by a group of aerosol artists against real estate developer Gerald Wolkoff and his business entities in connection with murals painted at the Long Island City, Queens site from which the case took its popular name. The plaintiff artists, each of whom had contributed artworks to 5Pointz, had previously sought an injunction under the Visual Artists Rights Act, 17 U.S.C. § 106A (“VARA”), against Wolkoff’s planned demolition of the warehouse buildings at the site in order to redevelop it for luxury housing. In November 2013, Judge Block denied plaintiffs’ request for injunctive relief. Within eight days of that denial, Wolkoff directed a program of systematic “whitewashing” of the majority of the disputed murals, and subsequently denied certain artist plaintiffs access to the buildings on the site, thereby preventing their recovery of additional works of art located there.

Although their attempt to save the 5Pointz murals was unsuccessful, the artists continued to pursue their claims, filing an amended complaint in April 2014 seeking resulting damages and costs under VARA. Wolkoff responded to the amended complaint in May 2014, asserting a counterclaim for “abuse of process” and alleging false testimony by the lead plaintiff Jonathan Cohen, who in addition to contributing works of art, had also curated the site. In July 2016, Cohen moved to dismiss or alternatively for summary judgment on Wolkoff’s counterclaim, and Wolkoff subsequently moved for summary judgment on plaintiffs’ claims, arguing, inter alia, that the murals at issue were not protected by VARA because they had not achieved the “recognized stature” required by that statute as a precursor to protection against destruction. The hearing on the summary judgment motions lasted three weeks, but in a surprising twist, “just prior to summations, plaintiffs … waived their jury rights. Rather than summarily dismiss the jury after it had sat through the entire trial, the Court converted it to an advisory jury.” Opinion at 5.

Adopting the jury’s findings in large part, Judge Block found that Wolkoff and his corporate entities were liable for willful violation of the artists’ VARA rights with respect to 45 works of art, and awarded the maximum statutory damages possible, in the amount of $6,750,000. In addition to its implicit recognition of the legitimacy of aerosol art and of the “striking technical and artistic mastery and vision” of the specific works at issue—which Judge Block praised as being “worthy of display in prominent museums,” Opinion at 13—the decision provides much-welcome clarification on several issues under VARA.

One such issue is the question of “temporary” works of art. In his July 2016 motion for dismissal of plaintiffs’ claims, Wolkoff had argued that VARA does not afford protection to works intended by an artist to be “ephemeral.” Judge Block easily dispensed with this argument, finding that “it is clear from 17 U.S.C. § 113(d) that temporary works are protected,” and that the statute focuses on removability of works, not their permanence. Opinion at 23, 25.

Tougher to tackle was the issue of “recognized stature,” the predicate showing that a plaintiff must make with respect to an artwork for which VARA protection is sought. Since its enactment in 1990, VARA has been litigated relatively infrequently, and judicial interpretation of the “recognized stature” language has been inconsistent, leading to confusing outcomes. The first significant case to address “recognized stature,” Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), applied a two-tiered analysis, requiring a plaintiff to show “(1) that the [artwork] in question has ‘stature,’ i.e. is viewed as meritorious, and (2) that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.” 861 F. Supp. at 325. Although some courts have recognized that testimony or other evidence of community recognition toward a showing of “recognized stature” may be relatively informal, see Martin v. City of Indianapolis, 192 F.3d 608, 613 (7th Cir. 1999) (upholding judgment in favor of sculptor based on newspaper articles, published testimonials and letters, despite no expert testimony being proffered on the issue), scholars in the art law community have criticized other decisions as establishing an unreasonably high bar to an artwork’s qualification for VARA protection. Against this backdrop, the art world carefully scrutinized the preliminary injunction hearing in the 5Pointz case, in which Erin Thompson, the CUNY art history professor who testified on Wolkoff’s behalf, asserted that in order for artwork to qualify for protection under VARA, it “should be at a level where scholars agree that it is ‘changing the history of art.’” Cohen et al. v. G. & M. Realty et al., 988 F. Supp. 2d 212, 221 (E.D.N.Y. 2013).

In the Opinion, Judge Block carefully answered the question that he had framed in his earlier opinion denying injunctive relief as being “whether to embrace the strictures of the academic views espoused by the defendants or the more expansive ones suggested by the plaintiffs.” Id. at 226. Specifically, in addressing the evidentiary threshold for “recognized stature” in the more recent Opinion, Judge Block noted the Martin court’s guidance that “expert testimony is not the sine qua non” and the Second Circuit court’s finding (on appeal in the Carter case) that courts must “use common sense and generally accepted standards of the artistic community in determining whether a particular work” qualifies for protection, concluding that “even inferred recognition from a successful career can be considered in determining whether a visual artist’s work has achieved recognized stature.” Opinion at 29 (citing Martin, 861 F. Supp. at 325, and Carter II, 71 F.3d 77, 83 (2d Cir. 1995)). After establishing that the bar to a showing of “recognized stature” should be relatively low, Judge Block noted that the 5Pointz plaintiffs had well surpassed it, having “adduced … a plethora of exhibits and credible testimony.” Id. at 29.

He accordingly found that “almost all of the plaintiffs’ works” thus “easily qualify as works of recognized stature,” as they were carefully selected by Cohen as the site’s curator, executed by artists who “had also achieved artistic recognition” outside of the site, and had been featured in films, television, and other media; in addition, the testimony of Renee Vara, an expert who was “highly regarded” and “highly qualified,” demonstrated that they were executed with “skill and craftsmanship” and had been the subject of “academic and professional interest.” Id. at 29-30. Judge Block also roundly criticized Thompson’s methodology as being “unduly restrictive and almost designed to avoid finding results,” noting that “[i]f not a single one of the[ disputed] works meet[s] the recognized stature standard, it is hard to imagine works that would, short of a Caravaggio or Rembrandt.” Id. at 31-32.

Judge Block’s 5Pointz opinion thus provides a significant correction to the recent jurisprudential trend toward an overly-stringent “recognized stature” analysis. If other courts follow the Eastern District’s lead, an artwork need not satisfy a “masterpiece” standard, and the indicia of community recognition that are becoming more prevalent in today’s digital world, including blog and social media posts, may be relied upon as probative evidence of a work’s stature.

The Opinion also serves as a stern warning to owners of real property onto or into which original works of visual art have been executed or incorporated, as the “wide discretion” afforded to a court in evaluating statutory damages may be used to “discourage wrongful conduct” by others. Opinion at 39-40. Throughout the Opinion, Judge Block noted not only that Wolkoff was “difficult” and “argumentative” as a witness, but more importantly that his destruction of the 5Points murals was “an act of pure pique and revenge,” the “epitome of willfulness,” and “singularly unrepentant.” Id. at 15, 44-45, 48. Wolkoff could have avoided all censure—and any liability under VARA—if he had simply given the artists ninety days’ notice and the opportunity to remove their works.  Because of Wolkoff’s egregious conduct, Judge Block awarded the maximum possible damages, however, “[i]f not for [his] insolence,” such damages “would not have been assessed.” Id. at 49.

Not surprisingly, Wolkoff has indicated that he will appeal the decision. The Opinion, however, sends the clear message that “potential infringers” should not violate VARA believing they may do so “at will and escape liability” due to the statute “hav[ing] no teeth.” Id. at 48. While the “tension” between “conventional notions of property rights” and the artistic rights established by VARA will inevitably continue to be difficult to navigate, the 5Pointz case provides valuable guidance to the relevant stakeholder communities.

 

Megan Noh

Megan E. Noh joined Cahill Cossu Noh & Robinson LLP in March 2017, reentering private practice after developing a broad range of expertise over the course of seven years’ combined business and in-house legal experience in the auction world.   Most recently, as Vice President and Senior Counsel for an international auction house, she handled all day-to-day U.S. legal affairs, including drafting and negotiating auction, private treaty, advance loan and other contracts, insurance inquiries and claims resolution, and questions of cultural property and provenance, regulatory and materials compliance.  Prior to her work in the auction sector, Megan practiced at the law firm of Hughes Hubbard & Reed LLP.
Megan’s education includes dual degrees in Studio Art and Government & Politics from the University of Maryland and a J.D. from the University of Pennsylvania.  She is currently Co-Chair of the New York County Lawyers’ Association’s Art Law Committee, a member of the New York City Bar Association’s Art Law Committee, and an Advisory Committee member for the New School’s Vera List Center for Art and Politics, and has spoken on the topics of authentication and pre-transaction diligence to various professional and academic audiences, including the American Society of Appraisers, the New York State Bar Association’s Entertainment, Arts & Sports Law Section, Fordham University School of Law, and U.S. Trust, and at conferences including those organized by the NYU Schools of Law and Professional Studies, the University of Cambridge, and the London School of Economics. Her publications include related articles in the ArtWatch UK Journal and the Institute of Art & Law’s journal, Art Antiquity and Law.

Chris Robinson

Christopher J. Robinson practices art law and intellectual property law, as well as general commercial litigation.  A former art dealer, he brings a practical knowledge of the art world to his practice of art law. His clients for both litigation and transactional matters include dealers, artists, art advisors, museums, auction houses, appraisers, art foundations, collectors, restorers, developers and publishers.  He is outside legal counsel to the Private Art Dealers Association and the New Art Dealers Alliance, and he has spoken widely on art issues, in particular on stolen art, consignment fraud, forgeries, copyright and moral rights, public art, dealer transactions, and artists’ rights.
Chris also has extensive experience in copyright and gray-market goods enforcement and litigation.  His practice includes trademark, unfair competition and false advertising, as well as libel defense and the first amendment.  He has also represented clients with respect to compliance with sanctions regulations promulgated by the Office of Foreign Assets Control (OFAC).
Chris joined the firm as a partner in 2017.  He started his art career in graduate studies at the Courtauld Institute of Art in London, followed by nearly twenty years as an art dealer in New York, including six years as an independent dealer in old master and nineteenth century drawings.  He received his J.D. from Fordham University School of Law in 2001 where he served as editor in Chief of Law Review.  Chris practiced at Debevoise & Plimpton LLP where he specialized in intellectual property, before moving to Davis Wright Tremaine LLP where he became a partner in 2011.
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