By Bill Parry
As two massive residential towers rise in Long Island City, on the spot where the 5Pointz graffiti mecca drew tourists from around the world, the cost could be moving higher for its developer.
A federal jury in Brooklyn decided unanimously Tuesday in favor of the artists in their landmark case against real estate developer Jerry Wolkoff, finding that he broke the law when he ordered workers to whitewash 49 of the graffiti murals under the cover of night in November 2013. He then demolished the complex a year later to make way for construction of the towers.
The jury reached its decision after three weeks of testimony by the 21 artists, including 5Pointz curator Jonathan “Meres One” Cohen, art experts and Wolkoff, but its decision is strictly a recommendation to Senior U.S. District Judge Frederick Block, who presided over the case.
“Even if it’s advisory, the recognition by the jury of the cruelty and violence of the whitewash is a huge victory for the artists in the case but also for the entire art community,” 5Pointz spokeswoman Marie Cecil Flageul said. “It sends a clear message which is: public art and free art is not disposable. Forty-nine works of art violently mutilated have become emblems for all the other pieces on the building and for the entire aerosol art community.”
The decision by the six-member jury in federal court said Wolkoff violated the federal Visual Artists Rights Act invoked by 21 of the 5Pointz artists in the court case.
“This case is about stature merit and recognition and we know that the judge will pay very close attention in his verdict to the law,” Cecil Flageul said. “VARA is a complicated law which requires a true understanding of the value of art, of contemporary art, of temporary art.”
It was the first time the so-called VARA law was used in protection of graffiti artwork.
“This case is making history and creating a needed precedent for the visual arts in America and all over the world, after the destruction of the artwork which can never be recreated,” Cecil Flageul said. “The goal of Meres One and fellow plaintiffs is to stand for their art form and send a clear message on the value of graffiti and street art.”
Enacted in 1990, VARA grants artists the rights to prevent intentional modification of the visual artworks and the destruction or mutilation of artworks of recognized stature.”
Wolkoff said the jury’s finding made his head spin in amazement.
“I don’t understand the ruling myself — I’m mystified,” Wolkoff said. “If you look at the VARA law, I’ve got to give them 90 days’ notice, but they knew for years that the building was coming down. Everyone knew it. But, hey, I know nothing about VARA. I’m a developer. If you can explain to me what I did wrong, I’d be interested to know. I whitewashed that building so they wouldn’t get arrested by protesting.”
Both parties will submit court papers in the next few weeks and Block will make the final ruling and decide if Wolkoff must pay damages to the 21 5Pointz artists.
“It’s up to the judge,” Wolkoff said. “I never did anything wrong. I just gave them a place where they could express themselves for more than 20 years.”
Reach reporter Bill Parry by e-mail at bparr