Copyright News

• Jurisdiction: United States,Federal
• Citation: Vol. 45 No. 3
• Publication year: 2020
• Author: Jo Ardalan
• topic: Intellectual Property,Copyright law,Real Estate

Copyright News

Jo Ardalan

One LLP

The Second Circuit Affirms Spray Paint Artists' $6.75 Million Statutory Damages Award Against Real Estate Developer for Violating the Visual Artists Rights Act

Real Estate Developer Gerald Wolkoff enlisted Jonathan Cohen to turn his dilapidated warehouses into an extraordinary exhibition space for aerosol arts.¹,² Cohen and other artists rented studio space. Cohen then curated the artists' works and turned Wolkoff's warehouses into a "major global center for aerosol art."³ The property, then known as 5Pointz, attracted thousands of visitors daily as well as celebrities and media coverage.⁴ Each wall was filled with aerosol art. Some works had a "short lifespan" and were painted over repeatedly, while others were longstanding works. Significantly, Cohen had a system to determine whether a work could be overpainted that required his consent and usually that of the artist as well. ⁵

When Walkoff later sought municipal approvals to demolish 5Pointz, Cohen and other aerosol artists (the "Artists") filed suit alleging that 5Pointz's destruction would violate the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ("VARA"). VARA grants certain moral rights to visual artists, including the right to prevent destruction of works that have achieved "recognized stature."⁶ An artist may waive his VARA rights when an artwork is incorporated into a building "in such a way that recovering the work from the building will cause the destruction, distortion, mutilation, or other modification of the work" if the artist "consented to the installation of the work in the building in a written instrument" expressly reciting that doing so might "subject the work to destruction, distortion mutilation or other modification by reason of its removal."⁷

The Artists sought a temporary restraining order, which was granted, but the request for a preliminary injunction was denied. While the district court was penning the opinion in denying the...