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Jury Sides With Graffiti Artists in 5Pointz Case, Says Developer Violated Artist Rights After Whitewashing Works

View of the front of 5 Pointz in Queens NY (2013). Photo by Ezmosis/Creative Commons)

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.

5Pointz after the artwork outside the building was whitewashed by Jerry Wolkoff, the site’s developer. (Photo courtesy of Timothy Krause via Flickr)

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.

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Understood. Thankful to sites like this where we can read/ express different points of view. And again, thankful for the creations done there and the participation of the building owner( initially) who helped make it possible. Before I go put on the song”What We Did For Love”, from the show Chorus Line, if anyone is still following this thread, hope someone writes a 10 minute skit/ play about this. The Secret Theater in L.I.C. is accepting submissions until Dec 15 for a 10 minute play festival. Someone should do this.( I ,myself, hope to finish a different theme for this). God bless ,all..


Frank, I understand what you are saying, but somehow believe you also know there was something wrong about this.. A complex, probably generational issue.. I know what’s done is done,but defacing anyone’s artwork(?).. Just wondering what else COULD have been done.. To the artists: keep creating. Thanks for what you gave, & for the canvas you were given..


Nope…I see nothing wrong with what happened. The art was on his building, therefore it belonged to him. The legal threats by the artists threatened his position as a property owner. If he wanted to destroy the art so be it.


To deliberately destroy( bcuz that is what it is) . Yes it is his building. But by agreeing to allow artwork there, he became a patron, so to speak. Was the concern that the courts would rule against him? Seems unlikely. Or that the wait for a ruling would take too long? This was cold, violent& angry: the owner’s own expression of..whatever(?). I cant see anyone feeling good about what they see after defacing anyone’s art in the middle of the night..


His building, his right to do what he wants with the “art”. This was cold, but violent? Angry? How? It was a business decision to move the development along and minimize lawyers sucking up money while the whiny graffiti twits engaged in a gratuitous lawsuit campaign.


To the people who believe he developer was right. He whitewashed the building overnight before a court could rule. This was a building where people came from around the world to see.I would take 5 POINTZ over the garbage they are building there now any day.


So this man allows the graffiti artists to use his building as a canvas for their artwork for 20+ years, all with the knowledge that at some point the building will be destroyed. Finally that day comes and the artists who knew all along this day was imminent are suing for financial retribution the guy who let them do this?? And who’s the greedy ones again??

This is disgusting in my opinion and these artists who brought this suit should be embarrassed with themselves… unfortunately they have no dignity or self esteem to speak of and therefore can’t understand how selfish and misguided they are.


You don’t have the facts right. He whitewashed the bldg early – there was supposed to be 10 more days. Plus, they were waiting on a judge’s decision for a delay in that. Slimy, really slimy. He violated the artists’ statutory rights. Glad to see him pay.

It was a courageous thing for these artists to bring the suit. They have done a tremendous service for NY artists and should be congratulated.


I hope the crooked owner Wolkoff has to pay so much in a money settlement that he has to stop work on his monstrosity on Jackson Ave.


AS I have said. I knew Trump wasn’t perfect. He had policies I agreed with. Hillary would have made a worse President. I can’t vote for OPEN BORDERS, sorry.


What a hypocrite. You should be ashamed. Thanks for giving another greedy developer more power. You are causing the problem you pretend to care about. What a joke.


this is bad for all artist looking to express themselves on PRIVATE property.
No one will invite artist to work on they’re walls in fear of being sued.
The artists in this lawsuit are full of it, they’re work was never to be on the building forever. It was ever changing.
This is bad for the art community.
If you want your art to be more admired put it on canvas and let the buyer decide to purchase it


Seriously?! Chas is either not an artist or is just really thick. This is a great jury decision for artists and reinforces the statutory artist rights in NY.


Actually I have a degree in Fine Arts. I just think that these artist are wrong. Just because your an artist does not mean that your principles are values and honesty are greater than others. Artist can be scammers as well.
They new what they were getting into from the beginning.
I have lived in NYC my whole life ,I’ve seen it all.
Good luck.

Thanks for the info mr expert artiste

Clearly you don’t have a degree in Law, which is why you’re so confused. From your terrible grammar I’d be surprised if you had a GED.


You are correct . I do not have a Law degree although I have
had experience in copyright law protecting my own work.
I actually have a MFA.
Give me one reason why any building/business owner would allow any artist to create work on their property.
This judgement will be appealed. The value has yet to be determined on the “said” art that was on the building. The jury can say 10 million, but the judge can
knock that down to the value of only time and material cost. It could actually be $1. It goes both ways, jury can also award too little.
The best advice I received in art school from teachers was that nothing is sacred in the art world. As good as you or others think you are , just try to secure yourself in life so you can always have the freedom to create your own work without compromise.
A few of my tenants are artist and I actually do my best to work with them ,but in the art world nothing is pure. Always have another plan.
So don’t be foolish.
Good luck, and I’ll be sure to tip you when you serve me my coffee.


That was funny. It would be if you are unsuccessful.
But I have never had to worry about that.
Grow up kids. LIC is not an art community any more . Your going to have to move further east or very far Upstate.
Life isn’t fair and neither is the art world. Except it.


Maybe you should have attended grammar school instead of art school?


Unfortunately, this will have a negative out come for future legal graffiti art. Landlords will either need to spend legal dollars to come to an agreement with an artist before they allow the artist’s work to go up on their walls or they will most likely just not allow it and avoid any future issues.


By law, landlords already had to do that. This case, so far, is the clearest legal precedent on it though. Wolkoff’s evident vindictiveness worked against him at trial. There have been other cases where artists were able to remove their works from the walls. This guy didn’t let them do that or even properly record their work. Will be interesting to see what the damages $ are.


Great news. I hate these greedy luxury condo developers, unless they run for president, in which case I instantly drop all my principles and vote for them.


I am not going to read either of your comments. One of you should call yourselves MRLIC2 or something.


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