- Words by Joanna Pan, Photos by Claudia Reyes
The 5Pointz Verdict: 10 Things You Should Know
On February 12th, 2018 federal judge Frederic Block ordered 5Pointz building owner Jerry Wolkoff to pay 21 graffiti artists over six and a half million dollars compensation for aerosol art Wolkoff destroyed in a blitz-like, 2013 whitewash. Block also released his accompanying supreme court opinion: a lengthy, meticulously documented narrative of his decision.
For the past month and a half, anyone with access to Internet news has been able to glean the import of Block's judgement: the wealthy real estate developer and his limited partnership lost; a group of 5Pointz artists won.
That’s the take-away, at least.
But SOLD Magazine doesn’t want its readers rendered complacent merely because the artists won and the real estate developer lost. We would all do well to learn more about Cohen et al v. G&M Realty L.P., the "5Pointz trial." And -- in so doing -- to resist lazier forms of support for the artists we adore: behaviors like mechanically parroting incendiary sentiment merely because it originated on the feed of someone we follow, or failing to apply our own powers of perceptual acumen when reading the news.
As 5Pointz founder Jonathan “MERES” Cohen himself pointed out to an Instagram user shortly after the verdict: “Read the full verdict, it’s public domain. Don’t go by confusing, catchy news headlines and half-ass[ed] facts.”
How to read the full verdict? Just google "Case No. 13-CV05612(FB)(RLM)," kick back, and treat yourself to over fifty pages of dense legal narrative, case citations and appendices.
Read through our 5Pointz FAQ and walk away knowing much more about the 5Pointz trial than when you started.
It's under fifty pages.
SOLD Magazine's Post-Verdict, 5Pointz FAQ
1. Since real estate developer Jerry Wolkoff owned the brick and mortar buildings upon which the 5Pointz graffiti was painted, didn’t that make the graffiti Wolkoff’s to preserve or destroy as he pleased?
No. Mr. Wolkoff -- as owner of the structures upon which the graffiti lay -- did not have exclusive rights over the graffiti. That is where VARA [Visual Artists Rights Act of 1990, 17 U.S.C. 113(d)] comes in. VARA affords protection for works of visual art that have "been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification by reason of its removal," reads law 17 U.S.C. 113(d).
VARA also states that if the owner of a building wishes to remove a work of visual art which is part of that building, he must make a "diligent, good faith attempt" to "notify the author of the [building]owner's intended action affecting the work of visual art."
As Judge Block wrote in his opinion of February 12th: "In the context of works on buildings, it is clear from 17 U.S.C. 113(d) that temporary works [of art] are protected."
2. Judge Block's February 2018 ruling and opinion referred to a court trial conducted October, 2017. Did the October trial call into question the legality of 5Pointz's destruction?
No. The 5Pointz buildings were legally destroyed in 2014. On the date of the buildings' destruction, the artists were not actively seeking to halt the demolition. They did, however, have a go at that in 2013:
In May 2013, Real Estate developer Jerry Wolkoff gathered the necessary municipal approvals to demolish 5Pointz and replace the site with condominiums. In response, the artists tried to attain landmark designation for the site, which would have made legal destruction of 5Pointz infinitely more difficult. They also asked the Eastern District Court of NYC to prevent the buildings' demolition. But the NYC Landmarks Preservation Commission did not confer landmark designation upon 5Pointz -- the graffiti art was simply not old enough.
And on November 12, 2013, Judge Block ruled that he could not validly halt the demolition of 5Pointz as art destination (one week later, Block wrote it was due in large part to the "transient nature” of that art). Block also told all parties to wait on his written opinion.
What happened shortly following Block's 11/12/13 ruling was the subject of last 2017's 5Pointz trial. Judge Block writes: "Rather than wait for the Court's opinion, which was issued just eight days later on November 20th , Wolkoff destroyed almost all of the plaintiffs' paintings by whitewashing them [on [11/19/13] during that eight day interim."
So the October 2017 trial was to determine the extent to which the real estate developer (Wolkoff) violated the 5Pointz artists' VARA rights in destroying the art that covered his buildings, preempting the demolition of the site by many months and even preempting delivery of the Court's written opinion. In so doing, Judge Block could then determine the amount of statutory damages -- under VARA -- to be awarded to the artists.
3. Jerry Wolkoff had the graffiti whitewashed overnight. But the artists already knew the buildings' destruction was imminent. So if the graffiti was whitewashed months ahead of the structure’s destruction, what difference did it make?
It made a significant difference under the law. VARA says building owners who wish to remove visual art from their buildings must inform the artists at least 90 days ahead by registered mail. This gives artists the time and opportunity -- where feasible -- to preserve or remove their works of art from the building before the works are destroyed in tandem with the brick and mortar. The 5Pointz artists anticipated destruction of the buildings, but many months AFTER the date upon which Wolkoff whitewashed the graffiti overnight. As a result, they were not afforded sufficient time to preserve/remove their work.
It made a significant difference morally as well:
To Judge Block, Wolkoff's overnight whitewashing was an example of "recalcitrant behavior" that "ignored the artists' rights." Block continues: "Because Wolkoff acted willfully in destroying the works of art, this factor weighs in favor of a high statutory damages award. Wolkoff's two alleged justifications for the whitewash -- that it would be better for the plaintiffs to lose their works quickly, and that he was concerned the plaintiffs might do something reckless and illegal in an attempt to save the works -- are implausible."
To graffiti writer JERMS -- among the 21 artist plaintiffs cited in this case -- there's miles of difference between scheduled demolition of a building and a surprise, overnight art white-wash:
'"The destruction of it without allowing anything to be salvaged was an art crime to the culture of this whole city, period. The building was going to be destroyed, and I was okay with that; that's [Wolkoff's] building to do with as he pleases. I'm not a privileged fool. However, my artwork was to remain up until the demolition and I was supposed to be allowed to recover the panels, or anything that I could before that. Our mural had several wood panels that we wanted to remove. The judge warned [Wolkoff] not to do anything, and he disobeyed the judge and ruined our work with bad intent. Then left it like that for a year, blocking off access. Like in graff, when someone goes over your piece for no reason and then leaves it showing so people can see it dissed," he says.
4. How did graffiti writers testify in federal court? I thought graffiti artists had to guard their anonymity.
"For me personally, I don't care. Yes, I do illegal graffiti sometimes, and they even showed it in the court: no one cared. It had and has nothing to do with this case. 'They' are not looking for me, I'm not out there destroying public property like we did as teens ... My Facebook is public, I am public. I post what I do. Yes, it has always been a thing in graffiti to keep your identity hidden, for several reasons [aside] from the obvious: not wanting your enemies to know what you look like. There are some writers hitting clean trains and destroying the city, which is the foundation of graff. Yes, they should keep their identity hidden, although some of them post or text pics to people they shouldn't. To me, in today's world of everyone online, 'They' know your identity or can find out in ten minutes. Trust me, I don't worry about that: I would worry about writers who get caught a lot but never seem to get in trouble..."
5. Judge Frederic Block made his ruling on the case in February 2018. But hadn't the trial already concluded on November 7, 2017 when the jury found in favor of at the artists?
No, there was no official ruling until this February. In November 2017, when the jury found in favor of the artists -- plaintiffs in this case -- the jury was acting in an advisory capacity for Judge Block.
As Mark H. Moore, partner at Reavis Page Jump LLP in Manhattan explains:
"Generally speaking, under the Seventh Amendment of the U.S. Constitution, litigants have the right to a jury trial of legal claims like the VARA claims at issue here. One or both parties must request a jury trial. Otherwise, the matter will be tried by the judge, who will then decide both issues of law and issues of fact. Here, the plaintiff artists withdrew their request for a jury trial as trial was nearly complete, and the defendants agreed that the court should make the final decision. However, under the Federal Rules of Civil Procedure, a judge may convene what is called an 'advisory' jury, which will provide a nonbonding guide for the judge making a decision. Judge Block chose to keep the jury in place as an advisory jury so that they, who had diligently fulfilled their duty for nearly the entire trial, could have their collective voice heard."
6. How may have some of the graffiti writers cited in this court case reflected on Judge Block's Feb, 2018 decision, which ruled overwhelmingly in favor of the artists?
Certainly, any individual graffiti writer's opinion of the case is not necessarily representative of the twenty-one 5Pointz graffiti plaintiffs as a whole. That said, we secured the opinion of two plaintiff graffiti writers in the case: JERMS and TOPAZ.
JERMS: "No one was trying to take [Wolkoff's] property or being disrespectful after he allowed us to paint there. [Wolkoff] disobeyed the judge, did something wrong, and violated the law in the process. It may seem crazy to some people, but there are implications if he was to go unpunished. First, it's not a good idea [for Wolkoff] to brush off a federal judge's warning, but the main thing is that he destroyed dozens of graff pieces and then claimed they had ZERO value so it's no big deal. If that was allowed to stand, it would set precedent that graffiti has ZERO value legally, ANY OF IT. So technically, I could then hire an artist to do a mural, draw stick figures and dicks on it, and leave it up running forever and he would have no legal recourse but to see his artwork ruined forever. Do you want Sprint or Burger King going over the Sean Price mural before they at least give the courtesy to try and save it? That all was in question. So in reality, what we did was to be adult, be informed, be vigilant, and stand up to protect our homegrown art form. And after a jury and a judge heard from art experts, auction house curators, art appraisers, professors, and more, they all clearly decided our art was worthy of protection under law the same as other types of art. That's all this was -- it's not about the flashy headlines with dollar amounts. The judge decided the punishment, we didn't sue or ask for those amounts. They are punitive damages for the malicious act. How does one truly punish a billionaire? I don't know, but we let the judge decide -- I would say he is wiser than most of us."
TOPAZ: "Our main purpose was to get the facts out there, and I think the facts spoke for themselves ... I think the judge chose wisely. Facts are facts."
Reflecting on the night of Wolkoff's 2013 whitewash, TOPAZ adds: "I was there with MERES and a few other people [that] night. We left 5Pointz at about 9-9:30pm, with no indication of anything happening. I got a phone call in the morning, because we were supposed to meet back at 9am. I got a phone call that the building had been painted. By the time I got there, there was no painting happening and there were a few people gathered around, not too many at that point. But it was very emotional, and there was nothing we could do."
7. What might this court decision bode for the future of relationships between developers/building owners and graffiti artists?
Mark H. Moore, partner at Reavis Page Jump LLP in Manhattan, weighs in:
"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 rights 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."
8. There were many, many graffiti artists who painted at 5Pointz or perhaps just visited -- artists outside the collective of 21 plaintiffs in the 5Pointz trial. What were some of their memories of 5Pointz, and opinions of the trial?
Graffiti writers Menace and Ming weigh in:
MENACE TWO: "I remember being amazed that Australian writers called [5Pointz] the "Force Field," while New Yorkers referred to it as the "Double Outline." MERES was the first graffiti OG to ever hit my book, and I respected him greatly as an artistic influence, a mentor, and a person. One of my closest childhood friends painted our first pieces as friends there. When [that friend] passed away, MERES was gracious enough to host his wake at 5Pointz, and painted his name on a heaven spot on the very top. I learned the basics of everything I do today as a writer, and everything it represented -- Queens, New York, lettering, styles, cultures, progressive values, positive vibrations, and unity underneath this fantastic art form -- was a large part of making me the person I am today.
MENACE TWO on his memories of Wolkoff's 2013 whitewash: "My parents called me into the living room and NY1 was on, covering the whitewashing of the building. When I saw it on the news, my heart dropped into my stomach, and I shed real tears. I had heard things about the case before the whitewashing happened, and I followed MERE's fight on social media, but I had no idea it would come to this. As soon as I heard about it, I showed up. I remember it clear as day -- we sat in MERE's car, and we talked about it. I went back nonstop the next few days; it was a time of mourning. There was a vigil: people showed up, lit candles, and cried just like I did. It's so incredible what egotistic action can do -- the Wolkoffs were willing to hurt an entire community just to make a buck, and as a result, so many people were affected. I was there during the time of the vigil, and in a moment of anger I painted a hollow in front of the security guard, and there was a police altercation. MARIE [5Pointz spokesperson Marie Cecile Flaguel], like an angel, shows up and helped me shoo them away ... The Wolkoffs have plenty of bad karma they're going to need to answer for."
MING: "I wasn't painting when I first visited 5Pointz, but I grew up on the 7-line and literally couldn't picture my childhood without that building in the backdrop. People used to call it Phun Phactory. It was genuine New York for me, one of the symbols of Queens that gave me pride. It knew I was lucky to see it -- it deepened my ability to love art, because God knows school didn't teach us to value art that wasn't European-centric; art that comes from the streets and struggle and fun.
9. Speaking of Phun Phactory: What were some of the differences between Phun Factory and 5Pointz?
"The difference between 5Pointz and Phun Phactory in my opinion is that [Phun Phactory manager] Pat DiLillo was an older gentleman who wasn't really a [graffiti] writer. From my understanding, his program started off as "Graffiti Terminators." After that got shut down, we came in as 5Pointz. And MERES is an artist, so having an artist curate an art space brought the level up a notch. MERES is a graffiti artist, and that building was full of nooks and crannies and just different obstructions ... he became good at curating the space and [had] the final word on everything."
10. There's been a lot in the news lately about H&M's attempts to infringe upon the rights of a graffiti artist. What are some of the differences and commonalities between the H&M graffiti incident and the 5Pointz trial?
H&M lawyers argued the clothing retailer needn't have adhered to conventions of copyright law in using Jason "Revok" Williams's artwork as visual backdrop in their New Routine sportswear campaign. To wit, H&M felt they didn't need to ask REVOK for permission to use his art, and didn't need to provide the artist with monetary compensation. Their rationale was that REVOK's work had been put up illegally on NYC Parks Department property, so intellectual property laws didn't apply. [Later, H&M issued an apology, admitting: “We should have acted differently in our approach to this matter.]
By contrast, the aerosol art on the 5Pointz buildings had gone up with the express permission of the buildings' owner. And when Wolkoff whitewashed the art on his buildings without notice, he knew he was in violation of VARA codes.
In this author's opinion, the similarity between the H&M and 5Pointz cases is that both center around failure -- on the parts of corporate entities -- to recognize or to honor a distinction between brick and mortar ownership, and intellectual property ownership. Wolkoff owned the buildings upon which aerosol art was created. But he still acted in disregard of aerosol artists' intellectual property rights when he whitewashed their work without proper notification. The NYC Parks Department owned the physical property upon which REVOK trespassed and erected his work. But laws governing real property / trespassing infringements do not alter or negate intellectual property laws.
Graffiti is art.
Art is intellectual property.
Intellectual property owners have rights.