Photo credit: Greg Naeseth

By Chelsey Heindel

Amid dilapidated warehouses and bustling loading docks in Long Island City, Queens, stands an iconic, unabashedly informal graffiti museum called 5 Pointz. 5 Pointz, named in homage to New York City’s five boroughs, hosts over 350 individual works produced by artists willing to make the metropolitan pilgrimage from places like Kazakhstan, Japan, and Brazil. But 5 Pointz will soon become one of two 47-story luxury apartment towers, unless a rarely invoked federal law can preserve the street art landmark.

On October 9, 2013, the New York City Council unanimously approved a demolition plan that would eliminate the “Mecca of the Aerosol Art World,” thus jeopardizing the graffiti haven’s existence. Desperate for legal relief, 5 Pointz curator and director Jonathan Cohen responded to the Council’s decision by filing for a permanent injunction against G & M Realty LP, the private company that owns the abandoned 5 Pointz site.

Cohen filed a complaint in New York federal district court alleging that 350 individual creations at 5 Pointz are each “works of art” within the scope of the Copyright Act. Cohen then raises three causes of action: interference with prospective contractual relations, interference with Cohen’s easement on the property, and, most notably, violation of the contributing artists’ moral rights under the Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. Enacted in 1990 and rarely invoked since, VARA preserves and protects certain inherent “moral rights” artists vest in their creations. These moral rights include the right to the integrity of a work (allowing an artist to prevent mutilation or distortion of works), a right of attribution (permitting an artist to disclaim works), and the right to prevent destruction of applicable works. Significantly, the right to prevent destruction of the works only attaches when the art is of “recognized stature.”

The “recognized stature” component promises to be the most challenging litigation obstacle for 5 Pointz. Courts have yet to develop a consistent standard for what constitutes “recognized stature.” In their reply, the 5 Pointz property owners will likely argue that the artists never expected their contributions to be permanent, and thus the works must fall outside the scope of VARA. The walls of 5 Pointz have been repainted numerous times since opening in 1993, resulting in contributions that have undoubtedly been altered from their original form.

If the case goes to trial, there may be some silver VARA lining for 5 Pointz. VARA does not require protected works be created with an expectation of permanence, so 5 Pointz’s ultimate impermanence may not be fatal in court. But 5 Pointz cannot win on that alone. When an artist alleges harm based only on removal of artistic works, the statutory protections cannot typically rescue the work itself. For example, the First Circuit ruled against an artist trying to enjoin a public park manager from removing several of his sculptures in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (2006). Specifically, the courtfound that the sculptures were created for the park site and that such “site-specific artwork” is unprotected by VARA. As 5 Pointz continues to mobilize public pressure and rally an increasingly global public relations campaign, the prospects for legal relief become less and less predictable.