The United States District Court for the Eastern District of New York refused to set aside the Court’s findings of fact and conclusions of law and grant a new trial to Cohen et al. v G & M Realty L.P. et anos, Case No. 13-CV-05612 (FB) (RLM). In an unusual decision, Senior District Judge Frederic Block awarded $6,750,000 as statutory damages for the willful destruction of Plaintiffs’ works of visual art by Defendant Gerald Wolkoff. The art was graffiti on a group of dilapidated buildings in Long Island City, Queens. The graffiti became a tourist attraction known as the 5 Pointz aerosol art gallery.
The Judge had previously ruled that the Visual Artists Rights Act of 1990 (VARA) applied. He decided that the visual art was viewed as “meritorious” and its stature must be recognized “by art experts, other members of the artistic community, or some cross-section of society.”
The decision on the motion (filed 6/13/18) indicates that the Judge was very upset at Defendant Wolkoff stating that he was insolent, mislead the Court and gave incredible testimony, “I had observed his demeanor on the witness stand and his persistent refusal to directly answer the questions posed to him by me and under cross-examination, I did not believe him.” The Court stated that were it not for his insolence, these damages would not have been assessed. “If he had not destroyed 5 Pointz until he received his demolition permits and waited 10 months later, the Court would not find that he acted willfully.”
The case is interesting because of the history of the graffiti. A preliminary decision by Judge Block, Cohen v G & M Realty L.P., 988 F. Supp. 2d 212 (2013), explains that one of the Plaintiffs, Jonathan Cohen, had approached Wolkoff in 2002 to become curator of the works that would be permitted to be painted on the walls, Wolkoff agreed. The Court noted Wolkoff “was supportive of creative efforts but wanted somebody responsible to manage it.” Further, “Wolkoff *** gave his oral blessing to permit qualified aerosol artists, under Cohen’s control to display their works on his buildings.” The artists always knew that Wolkoff had long-term plans to tear down the factory and build luxury housing on the parcel.
In the decision, the Court determined that even though the art was protected under VARA, it could not enjoin its destruction. “The Court regrettably had no authority under VARA to preserve 5 Pointz as a tourist site.” It suggested that the authority to preserve 5 Pointz vested in State and local authority and suggested that the City could probably exercise its power of eminent domain. The finding was that the Court’s authority under VARA is consequently limited to determining whether a particular work of art that was destroyed was one of “recognized stature,” and if so, what monetary damages the creator of each work is entitled to.
The decision filed June 13, 2018 is a remarkable 29 page decision with an attached 59 page appendix which describes the evidence supporting the Court’s determination of recognized stature for each of the 45 works.
The matter is on appeal to the Second Circuit.