What Banksy Could Not Accomplish In NYC: Save 5 Pointz - Fordham Intellectual Property, Media & Entertainment Law Journal
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What Banksy Could Not Accomplish In NYC: Save 5 Pointz

What Banksy Could Not Accomplish In NYC: Save 5 Pointz

This month, 5 Pointz, a collection of warehouses in Queens that became a magnet for street artists worldwide, was wiped away as painters came in the middle of the night to cover the graffiti seen by many as a work of art, worthy of protection.  The building’s owners plan to demolish the warehouses and build luxury apartments on the land.  A group of artists who put their works on the walls of 5 Pointz sought a preliminary injunction in the U.S. District Court for the Eastern District of New York, to prevent the demolishment under the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A.

VARA protects “work[s] of visual art,” and permits an injunction for the “destruction of a work of recognized stature.”  The Court delivered its opinion on November 20, the day after the works were painted over.  Judge Frederic Block, relying on Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 315 (S.D.N.Y. 1994), found the plaintiffs fell short of a “two-tiered showing.”  A plaintiff must show that their visual art has “stature,” meaning others see the work as “meritorious”; this “stature” must also be “‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.”  Both parties brought forth art experts to speak to whether there was any “recognized stature” of 5 Pointz.  Erin Thompson, an art history professor testifying for the defendant, stated art works have “stature” when they “chang[e] the history of art.”  Thompson viewed “recognition” of a work of “stature” as garnering academia’s attention, through dissertations and journal articles, or even an Internet presence for the work or artist.  She testified that no such publications mentioned most of the works, and only a few artists and works could be found through a Google search (most of those were from the 5 Pointz’s website itself).

Daniel Simmons, Jr., head of the Rush Philanthropic Arts Foundation, testified for the plaintiffs.  Simmons found “stature” in all the works, calling all of them “‘real artwork.’”  Simmons saw “recognition” in the works by stating “‘if it was missing from the canon of art history . . . it would be a loss.’”  He found the large number of people who came each year to view the artwork granted enough “public exposure” to have given 5 Pointz the “recognized stature” requiring the Court’s protection.

While the Court recognized that “our souls owe a debt of gratitude to the plaintiffs for having brought the dust walls of defendants’ buildings to life,” Judge Block declined to grant an injunction.  The Court relied on the fact that the main owner of the developers, Gerald Wolkoff, repeatedly told Jonathan Cohen (the curator of the works), that the warehouses would be torn down for a new development project, and the graffiti works would not be permanent.  Further, monetary damages could compensate the artists for their work, even more reason to not grant an injunction.  The Court deemed 5 Pointz to be a “tourist site,” not a visual work of art, thus the City was better positioned to protect the site, but declined to do so.

Joshua Kiel

Josh Kiel is a second year student at Fordham Law School. He studied Political Science and History at Rutgers University, and is a member of the Fordham Intellectual Property, Media & Entertainment Law Journal.