2015-07-08 / Front Page

5 Point Artists Seek Damages For Lost Artwork

By Liz Goff

Attorneys for nine of the 5 Pointz graffiti artists filed a lawsuit in Brooklyn Federal Court on June 12, seeking punitive damages from developers Jerry and David Wolkoff who, they say, destroyed their artwork in a “disgracefully crude, unprofessional manner” when they whitewashed the Long Island City warehouse complex in November 2013.

The artists claim in the lawsuit that they were denied “90 day due notice” of the developer’s plans to whitewash the buildings, and were therefore unable to salvage the artwork before it was destroyed.

Supporters of the 5 Pointz artists decried the whitewashing as “art genocide,” and said it was designed to stop the artists from seeking legal protection for their work.

Attorneys at Eisenberg & Baum LLP, who are representing the artists, said in the lawsuit that their clients are seeking compensation for their lost work under the federal Visual Artists Rights Act and Copyright Law (VASA) of 1990, which protects the work of artists from being demolished if it has “recognized nature.” 

The law states that protected artwork cannot be altered, modified, demolished or destroyed without the artists’ permission.

This is not the first time the artists have sought to protect their work under VASA. A group of the graffiti artists sought a federal injunction in the fall of 2013, seeking to halt demolition of the warehouse complex. The artists claimed the buildings had “recognized nature” an were therefore protected under VASA.

The group of the artists, flanked by their attorneys, got some backing from street artist Banksy, who wrote on his website “Save 5 Pointz” just days before he packed up his stencils and left New York City following a controversial visit to the Big Apple.

John Jay College professor Erin Thompson took the witness stand in Brooklyn Federal Court during the hearing, where she bantered with Federal Judge Frederic Block about the legitimacy of the graffiti art on the 5 Pointz building. Block entered Banksy’s name into the fray, suggesting to Thompson that the popularity of the stteet artist was a sign that graffiti is authentic art.

Thompson replied that, despite Banksy’s following, she was unable to find a single Google reference to any of the graffiti art that was on the 5 Pointz building at that time. Thompson argued that was a clear indication that the graffiti art on the building did not qualify as the type of art protected under VASA.

The federal action was believed to be the first in the nation’s history to be filed by graffiti artists seeking legal action to protect their artwork.

At a hearing on November 6, 2013, Block flatly stated that the building owner’s property rights won over the artists’ rights in the hotly contested case. “I can’t grant the injunction,” Block said. “I love the work and it’s going to tear my heart out to see it torn down, but as a judge I have to apply the law,” Block said.

“The building, unfortunately, is going to have to come down.” Block said, adding that the building owners had the right to build on their property.

The new lawsuit claims that, over the years, 5 Points evolved into a tourist attraction that assisted in the transformation of the neighborhood into an  “attractive place for residential development.” The lawsuit also claims the developers failed to give fair or lawful notice that they were going to whitewash the buildings, that their clients were entitled to a 90-day warning before the artwork was destroyed, and that their clients assumed a prestigious reputation by displaying their artwork on the buildings.

The lawsuit also alleges the developers whitewashed the buildings to cause shame and indignity to the artists. “Defendants could have permitted Plaintiffs an opportunity to mitigate their damages, but they chose not to do so,” the lawsuit states. 

It is unclear how much the artists are seeking in punitive damages at this time. But artists who painted on the building have said in the past that they would seek up to $150,000 damages for their lost work.

The Wolkoffs issued a statement saying they believe the new lawsuit is “without merit.” David Wolkoff described how the artists, who painted on buildings at the complex for more than two decades, “constantly painted over people’s work.”

 “That’s what (graffiti) artists do,” David Wolkoff said. “That’s the true nature of this specific type of art, to constantly paint over it.”

The Wolkoffs said they did not stop the graffiti artists from painting on the buildings and stressed that it had been widely publicized, prior to the whitewashing, that the buildings were going to be demolished to make way for development of two mixed-use towers.

 The Wolkoff family, who has owned the property on Davis Street in Long Island City for 40-plus years, obtained unanimous approval from the City Council in May 2013 to demolish the maze of warehouses to make way for the two towers, 41 and 47-feet-tall, that would include, among other things, 12,000 -square-feet of artist studios and gallery space for the artists. The buildings were demolished in the summer of 2014.

The owners said the many legal actions launched by the artists to stop demolition of the buildings are a clear indication that they knew the 5 Pointz complex was going to come down to make way for the new development


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