Nov. 8, 2017, by Nathaly Pesantez
A jury delivered a verdict in favor of the graffiti artists involved in a court case against the real estate developer of the 5Pointz site, where 21 artists said their rights as visual artists were violated when the developer whitewashed and destroyed their artwork over the Long Island City building in 2013.
The verdict was reached by jurors in Brooklyn’s federal district court on Nov. 7 in the case about artists’ rights and property owners’ rights. The jury found that Jerry Wolkoff, the developer behind the two residential buildings under construction at the former site of the graffiti-laden landmark, largely violated the rights of the plaintiffs when he painted over 49 pieces of art work. Wolkoff claimed that the works were not protected by law.
The jury was required to independently evaluate each work and decide if it was protected under the Visual Artists Rights Act, which gives artists the right to protect certain works from being distorted, mutilated, modified, or destroyed.
The presiding judge will use the jury’s verdict as a recommendation, and will then deliver the final verdict.
The case stretches back to 2015, two years after Wolkoff whitewashed works upon the building under the cover of the night, which the artists said was “entirely gratuitous and unnecessary” and denied their opportunity to record or preserve their artwork, according to the complaint. Some 350 works covered the interior and exterior walls of the building.
While Wolkoff gave permission for artists to use the barren 5Pointz building in 1993, and later granted one of them, listed in the suit, the authority to curate future works in 2002 and use part of the building as office space, the developer announced that the space would have to be vacated by Nov. 30, 2013.
On Nov. 20, without warning and before the Brooklyn Federal Court could issue a court order temporarily preventing anything to be done to the artwork while a separate court deliberation proceeded, Wolkoff painted over the aerosol art works. The plaintiffs said Wolkoff already announced his intent to demolish the 5Pointz site, rendering the choice to whitewash the art as an “egregious public insult” meant to shock and inflict emotional trauma.
Wolkoff retained that he was within his rights, and said the artists had an understanding that the building would be demolished in the future. The nature of graffiti as an ephemeral art, where artists often paint over another’s work, discounted any notion of protected art work, his lawyer David Ebert said in court proceedings.
The jury deliberated over the course of 22 days, beginning on Oct. 16.
Eric Baum, attorney for the plaintiffs, told the New York Times and the Daily News that the jury was strongly aligned with the rights of the artists. “This is a clear message from the people that the whitewashing of the buildings by its owner was a clear and willful act.”
Baum did not immediately return a request for comment. Ebert declined to comment.