Artists File Another VARA Suit for Destruction of Five Pointz (NY)

Five Pointz was a warehouse in Long Island, City, Queens that became famous because it was covered with graffiti art.  The property owner actually encouraged the grafitti and allowed a “curator” to organize the various artists and their projects.

But eventually the property owner wanted to sell the warehouse to housing developers.  The artists filed suit under the Visual Artists Rights Act, which provides protection to living artists for modification of their art.  The plaintiffs sought to obtain a preliminary injunction against the property owner to protect the art and to prevent the sale of the building, but the owner of the property suddenly painted the building white in the middle of the night to cover the graffiti.  The Court denied the injunction finding that their was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute.

The first lawsuit, Cohen v. G&M Realty, remains pending, and now a second set of artists have filed suit in Castillo v. G&M Realty.   These artists also seek damages under VARA, alleging that they transformed a “derelict property” into a tourist mecca that attracted aspiring artists from all over the world.  Of note is that these artists also seek damage for the owner’s “whitewash” of the building.

It remains to be seen whether either of these suits can get past the original hurdles identified in the decision denying the preliminary injunction. It will also be interesting to see if these courts determine that the rights of the artists to protect their works trump the rights of a building owner to modify and sell his property.

We shall continue to follow these cases on Of Interest.  Please write to Mike Bono for more information.