This VARA dispute makes some interesting moves on
irreparable harm—it’s hard to see why courts are still stuck in “copyright/TM
harm is irreparable” given what they’re doing elsewhere.
Plaintiffs sought to prevent the destruction of their
graffiti art on the exterior of defendants’ buildings, which are scheduled for
demolition. The art has now been painted
over; the opinion explains the court’s decision to deny a preliminary
injunction against the destruction.
Because of the art, the buildings became a significant
tourist attraction known as 5Pointz. One of the pieces in question:
VARA protects against the destruction of works of visual
art, but only if they are works of “recognized stature.” To figure out whether
plaintiffs’ work qualified, the court went through the history of the art. Cohen and Wolkoff, the effective owner of the
buildings comprising 5Pointz, agreed that the buildings had become a place for
distasteful graffiti. To control the
problem, Cohen approached Wolkoff in 2002 to become the curator, and Wolkoff
agreed; Cohen was one of the principal contributors to the art and Wolkoff
liked his work, though nothing was put in writing.
Under Cohen’s supervision, the quality of the art improved
and the site “evolved into a mecca for high-end works by internationally
recognized aerosol artists” and a “New York must-see.” But Wolkoff planned to knock down the
buildings to make room for two apartment complexes. The planning commission required that
defendants include 75 affordable housing units and 3,300 square feet of
exterior art panels “to be used to maintain artist street wall art in the
area.” There was no feasible way to incorporate the existing art into the new
buildings.
The parties’ experts understandably disagreed about whether
the 24 works at issue were of “recognized stature,” as required by VARA. Much of the plaintiffs’ testimony “did not
differentiate between these discrete words, and by and large assumed that if
the work had artistic merit it was ipso facto of recognized stature.” Defendants’ expert took a restrictive view,
opining that a work of recognized stature should be at a level where scholars
agree that it is “changing the history of art.” (OK, I know there’s not much help in the
legislative history, but I can’t imagine that’s the standard!) The art at 5Pointz was not recognized by
scholarly works. Although the expert
acknowledged 5Pointz’s recognition as a tourist attraction, she believed that
this wouldn’t satisfy VARA unless visitors came to see a particular work, in
which case it would be a work of recognized stature even without scholarly
recognition.
By contrast, plaintiff’s expert, whose testimony the court
found credible, focused on the works’ quality. She opined that “recognition” meant “there’s enough people that know what
[the work] looks like, and feels like and what it’s trying to impart; that it
would be, to me, if it was missing from the canon of art history, that it would
be a loss.” She testified that 5Pointz’s
public exposure conferred the requisite stature, and pointed to a documentary
he made featuring the site. She also
testified about the general reputation of the artists who contributed works,
contending that their recognition conferred significance on any work they did.
The court then turned to the works’ ephemerality. Wolkoff always told Cohen that he’d be
knocking down the buildings, and there were numerous public statements by Cohen
and other artists indicating that they knew the works were temporary. Cohen allowed some works to be painted over;
others he deemed “permanent,” meaning that they would last “[a]s long as [he
was] there and the operation’s there.” He chose special places for them—mostly
high up, and all around the building.
When a collapsed staircase was removed in 2009, the whole building was
painted over with the exception of Lady Pink’s “Green Mother Earth.” Since then, consistent with past years, about
“1,000 new images” had been placed on the buildings each year. At the preliminary injunction hearing, about
350 survived.
Cohen said in an interview: “Anyone can paint. But not
everyone’s art stays up for long. Some works last 12 hours; other pieces remain
for two years.” Another artist, Danielle Mastrion, painted a celebrated
portrait in July 2013, even though she had “been hearing for years that there’s
always a chance that the building can come down,” and was “aware that [the
owners] were obtaining approval to knock down the building at the time [she]
put the piece on the building.” Eighteen
of the 24 works for which VARA protection was claimed were painted after 2010,
and 8 were painted in September, weeks after the planning commission approved
the development plan. Thus, “Cohen and his fellow plaintiffs undoubtedly
understood that the nature of the exterior aerosol art on Wolkoff’s buildings
was transient, and that all of the works that he allowed to be painted on the
buildings would last only until they would be demolished to make room for Wolkoff’s
housing project.”
The court concluded that aerosol art can be visual art
protected by VARA. But VARA only
protects a work. There was no authority to preserve 5Pointz as
a tourist site. Thus, the court’s
inquiry was limited to whether a particular work that was destroyed was one of
“recognized stature.” The court
concluded that at least some of the 24 works, such as Lady Pink’s “Green Mother
Earth,” could be shown to be of recognized stature, though that was for a full
merits determination.
For preliminary injunctive relief, though, irreparable harm
was required, including a showing that damages were inadequate. And here the court gave short shrift to any
nonmonetary interests, which might seem like an odd result in a moral rights
case: “plaintiffs would be hard-pressed to contend that no amount of money
would compensate them for their paintings; and VARA—which makes no distinction
between temporary and permanent works of visual art—provides that significant
monetary damages may be awarded for their wrongful destruction.” Though the court emphasizes the temporary
nature of this art, its reasons don’t seem so limited: “paintings generally are
meant to be sold. Their value is invariably reflected in the money they command
in the marketplace. Here, the works were painted for free, but surely the
plaintiffs would gladly have accepted money from the defendants to acquire
their works, albeit on a wall rather than on a canvas.” In addition, the court found that “plaintiffs’
works can live on in other media,” specifically photography. The works remained protected by copyright law
“and could be marketed to the general public—even to those who had never been
to 5Pointz.”
But, whether this was part of irreparable harm or of
balancing hardships, “the ineluctable factor which precludes either preliminary
or permanent injunctive relief was the transient nature of the plaintiffs’
works.” Cohen always knew that the
buildings were coming down “and that his paintings, as well as the others which
he allowed to be placed on the walls, would be destroyed.” The court was particularly distressed by the
recent creation of many of the paintings, after the planning commission gave
its final approval to the new construction.
“In a very real sense, plaintiffs have created their own hardships.”
Still, defendants shared some responsibility; Wolkoff “gave
his blessings to Cohen and the aerosol artists to decorate the buildings, and
he did not choose to protect himself from liability by requiring VARA waivers.” Also, while he was a genuine art lover, he
also benefited economically from all the attention to the site. Since VARA protects even temporary works from
discussion, the judge suggested that damages might ultimately be “significant”
if a trial determined that the works were of recognized stature.
The public interest would be served by the new apartments,
including affordable housing, and its aesthetic interests would be addressed by
the new exterior surface available for art.
The court didn’t conceal its preference for defendants to do even more,
presumably by way of settlement: “They can make much more space available, and give
written permission to Cohen to continue to be the curator so that he may
establish a large, permanent home for quality work by him and his acclaimed
aerosol artists. For sure, the Court would look kindly on such largesse when it
might be required to consider the issue of monetary damages; and 5Pointz, as
reincarnated, would live.”
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