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Jury Sides with 5Pointz Artists in Lawsuit Over Destroyed Graffiti

If the judge in the case follows suit, the verdict could set a remarkable precedent for the protection of graffiti and street art under the Visual Artists Rights Act.

The plaintiffs around their expert, Renee Vara, in front of a federal district court in Brooklyn (photo by Jerry Rotondi, courtesy 5Pointz)

A jury has decided that 5Pointz developer Jerry Wolkoff broke the law when he whitewashed the longstanding graffiti mecca in Queens four years ago without notifying the artists who had contributed works. The ruling, from a federal district court in Brooklyn, is not final but will serve as a recommendation to the presiding judge, who will deliver the ultimate verdict, as the New York Times reported.

If Judge Frederick Block sides with the jury, the 21 artists on the suit could recover damages from Wolkoff. The plaintiffs would also have won a landmark case that considers street art protected by federal law, under the Visual Artists Rights Act of 1990 (VARA), setting a significant precedent for street artists’ rights.

5Pointz after it was whitewashed in 2013 (photo by Tiernan Morgan for Hyperallergic)

“The advisory verdict from the jury  — after four years of stress and pain — is a big step for visual artist rights in this country and all over the world,” 5Pointz spokesperson Marie Flageul told Hyperallergic. “The message sent by the jury is that the whitewash of our artwork was a cruel and spiteful act. VARA was created to protect art — in our case, legal public visual art created by the artists for the people.”

The jury’s decision arrives after much legal wrangling. Several artists first filed an emergency injunction in 2013 to prevent Wolkoff from tearing down 5Pointz to build luxury residential towers, claiming protection under VARA. The injunction was denied, with Block saying that Wolkoff, as the owner of the site, had every right to redevelop the property. The judge added, however, that the artists could be owed damages if their aerosol works were proven to be of “recognized stature,” and thus qualify for protection under VARA. Nine artists filed a followup suit in 2015 to seek those damages; Block ruled last March that they could have a jury trial.

During the three-week long trial, the artists’ lawyer, Eric Baum, argued that Wolkoff had failed to give his clients the required 90 days notice of the building’s demolition, which would have given them time to document or preserve their artwork. Wolkoff, who had invited artists to paint on his property for over 20 years, contends that they knew he ultimately planned to tear down the warehouse to build high-rises; his lawyer, David Ebert, argued that VARA was irrelevant to the case as the law concerns artworks, not property.

5Pointz after it was whitewashed in 2013 (photo by Tiernan Morgan for Hyperallergic)

Today, two luxury residential towers are rising at the site of the old 5Pointz. These condos are also called 5Pointz, a name that’s spelled out in wildstyle lettering on various signs, as Wolkoff’s homage to the graffiti hub he whitewashed. Their stairwells and lounges, too, will incorporate graffiti-inspired wall art, according to renderings shared by Mojo Stumer Associates, the architectural firm that designed the 1,115-apartment project.

The genuine works of graffiti that once colored 5Pointz are long gone, but this trial offers a vital opportunity to redress not only any injustices to their artists but also longstanding prejudices toward the street art community.

“Graffiti/street art is a relevant art form which is to be preserved and respected. It is not disposable,” Flageul said. “I hope this case and the final verdict will give the credit and respect our culture deserves.”

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