By Danielle Ollero

Grafitti is often considered a form of vandalism, or a criminal act. However, at the 5Pointz building in Queens New York, it is the white washers who are being called vandals.

Jerry Wolkoff purchased the warehouse building in 1971. During the early 1990s Mr. Wolkoff was approached by someone who removed graffiti from walls around the city and asked if local artists could use the walls of his building as their canvases. Mr. Wolkoff initially agreed to allow some of the walls to be used, but he slowly allowed more and more of the building to be used because he enjoyed the artists’ work so much. In 2002, the artist Jonathan Cohen, also known as Meres One, became the project’s curator. He named the project “5Pointz,” signifying that this was a place where the five boroughs of New York could come together and unite as one.

Although there are other places around New York where aerosol artists may paint legally, 5Poitnz was by far the most prestigious. Attracting artists from not just around the city, but around the world. Artists from France, Italy, Japan, London and more came to leave their mark on the ever-changing walls of the iconic five story building. The building became somewhat of a museum for the history of graffiti art. It displayed works from famous street artists like Banksy, whose art sells for millions of dollars. 5Pointz’s unique display of high profile street artists combined with the historic perspective it presented on this uniquely temporary art form were just a few of the reasons that its demise came as such an emotional shock for the global street art community.

In 2013, rumors began to spread that Mr. Wolkoff intended to demolish the building and replace it with luxury high-rises. In response, Mr. Cohen and a group of other 5Pointz artists filed a lawsuit in October 2013, seeking protection of their art under the federal Visual Artists Rights Act (VARA).

VARA offers limited protection for original copies of qualified works of visual art. These rights only last as long as the artist’s lifetime, and the rights can be waived. In the case of 5Pointz, an additional hurdle exists because in order to prevent the destruction of the building, the court must find that it is a “recognized structure.” Further, even if 5Pointz is found to be a “recognized structure,” the court must still weigh its destruction against other competing interests, like those of the owner of the structure. The artists were granted a temporary stay, but District Judge Frederic Block denied their motion for an injunction to stop the demolition of the building.

After the denial, the artists still maintained hope that they would be able to save their art. But that hope was lost in the early hours of November 19, 2013 when the building was whitewashed without warning. That morning, seemingly tough street artists were brought to tears when they discovered the blank, white walls of the building. Mr. Wolkoff stated that he believed this would be easier on the artists, rather than seeing their work be slowly dismantled over the next several months. He also promised that the new building would have a place to display art inside, as well as walls on the outside where street art would be welcomed to continue.

However, Judge Block reached his verdict through a very narrow reading of the VARA. He ruled that VARA does not prevent the destruction of the visual art, but that it does allow for monetary damages to be obtained for the destruction of the art. He held that the only way that the destruction could be prevented was for the site to be declared a tourist attraction or a landmark, which was outside of his court’s jurisdiction. So, despite the destruction of their art, the artists continued to pursue their VARA claim for monetary damages.

The artists have a strong case because the building was such a widely acclaimed display for members of the street art community. In addition, its destruction has led to even wider national and international attention. However, the largest issue for the artists will be that the court will consider each artistic work separately from the others. On March 31^st Judge Block requested that the artists create their “final list” of all the works that were displayed on the building so he can determine whether multiple juries will be needed to decide all of the cases. A trial date is expected to be set for May of this year.

Despite the potential recourse for these artists, this case illustrates one of many gaping holes in the law for the protection of visual artwork. Monetary compensation can never restore the colorful history that was destroyed beneath a coat of white paint.

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