Court of Appeals upholds decision awarding $6.75 million to 5Pointz artists whose works were destroyed

Photo by Bill Parry

Developer Jerry Wolkoff is going to have to pay millions in damages for destroying the 5Pointz graffiti mecca back in November 2013 in an effort to tear down the dilapidated warehouse complex so he could build two luxury residential towers in Long Island City.

The Second Circuit Court of Appeals upheld Federal Judge Frederick Block’s $6.75 million judgement against Wolkoff, ruling that his whitewashing of the murals at 5Pointz violated the federal Visual Artists Rights Act.

“I’m very happy,” 5Pointz Founder and Curator Jonathan “Meres One” Cohen said. “I never would have thought that four federal judges would validate graffiti art as legitimate art and that’s what they’ve done with this landmark ruling. I’m numb to it still.”

The decision sets a precedent for future aerosol artists in that VARA had never been used in a case involving graffiti art.

“The statute recognizes that, unlike novelists, or composers, for example, visual artists depend on the integrity of the physical manifestations of their works,” U.S. Circuit Judge Barrington D. Parker Jr. wrote in the 32-page ruling on behalf of the three-judge panel.

Wolkoff, who named his new complex 5Pointz Towers, argued that the temporary quality of the murals didn’t meet with VARA standards and that the artists covered their own works to make way for new murals.

“Although a work’s short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognized stature,” Parker wrote.

In 2002, Wolkoff allowed Cohen and graffiti artists from around the world to fill the warehouse walls with aerosol art and before long 5Pointz became a tourist attraction and epicenter of the New York City hip-hop scene.

When Judge Block issued his decision in February 2018 following a three-week jury trial at Federal District Court in Brooklyn, he praised the 21 artists who filed suit writing that they “conducted themselves with dignity, maturity, respect, and at all times within the law,” adding that their behavior contributed to his decision to award them significant damages.

“The legacy of 5Pointz may be this ruling and the clear statement that aerosol art and public art are not disposable. The 21 plaintiffs, including myself, believed in the law and stood up for our rights, we believed in the value of our art and we were heard,” Cohen said at the time. “The art adorning 5Pointz is gone and can never be replaced, the 7 train commute will never be the same, but Honorable Judge Block’s judgement is historical for generations of artists all around the country. 5Pointz art was a true form of free speech, and this ruling honors this great American tradition of standing up for your rights.”

As Wolkoff and his son David prepare to open the 5Pointz Towers in May, they also have a big decision to make.

“I don’t know what happens next, that’s what David and I are contemplating right now, whether to end this right now or take it to the Supreme Court and we have 90 days to decide,” Wolkoff said. “The worst part about all this is I still think I’m right but the whole world thinks I’m wrong. Yeah, I painted over it, but they painted over it, too. I guess I’ll just have to live with it.”