A New York lawsuit asks: Is graffiti art protected under federal law?

Jonathan Cohen is one of the "graffiti writers" suing over the destruction of works on warehouses torn down in Long Island City, N.Y.
(Carolyn Cole / Los Angeles Times)

For more than a decade, they came from across New York City and around the world to leave their mark at the place they called 5Pointz.

Armed with cans of spray paint, they left bubble-lettered tags, outlined buxom cartoon women and undertook elaborate murals of a green Mother Earth and of a white-haired Dos Equis man on the walls of several interconnected warehouses in Queens.

To the creators — and the man who allowed them to paint — this wasn’t some random graffiti hurriedly slapped on a subway car. They viewed themselves as artists, and in time 5Pointz became a tourist destination.


Some of the works lasted just a day, others a year or more — part of a dynamic installation that occupied the better part of a city block. Much of it was visible from the windows of the elevated No. 7 train to Manhattan.

A man shovels snow by the warehouses that were known as 5Pointz in January 2011.
(Frank Franklin II / Associated Press )

The building complex has since been torn down, but the images that once covered its walls are at the heart of a legal battle that asks whether graffiti, or temporary “aerosol art,” should be recognized as art worthy of protection under federal law.

“The fact that graffiti art is even being talked about as something that might have recognized stature shows you how far graffiti art has come in the art world,” said Kate Lucas, an attorney at Grossman LLP who has followed the case closely but is not a participant.

Today, major brands draw inspiration from graffiti for advertisements; galleries and auction houses exhibit it; and artists such as Banksy and Shepard Fairey enjoy celebrity status. A store in Soho sells premium aerosol paint for $15 a can.

But in 1970s and 1980s New York, graffiti mostly conjured images of fly-by-night hoodlums who illegally “bombed” tunnels, bridges and subway cars with their tags, using paint they stole from hardware stores or applicators jerry-built from deodorant sticks fitted with alcohol, carbon paper and dish sponges.


In the 1990s, graffiti was a favored target of New York City Police Commissioner William J. Bratton, who embraced the “broken windows” theory of policing, which held that aggressively prosecuting low-level crimes, like vandalism, could prevent bigger crimes.

But that was also the decade when real estate developer Gerald Wolkoff first allowed artists to paint over the walls of a warehouse building complex he owned in Long Island City. The collaboration, initially known as the “Phun Phactory,” began with Pat DeLillo, whose prior job, ironically, was removing illegal graffiti. With Wolkoff’s permission, DeLillo invited local graffiti artists to paint on the buildings.

In 2002, Jonathan Cohen, an artist known by the tag “Meres One,” took over and created the 5Pointz Aerosol Art Center, or simply 5Pointz, a reference to the city’s five boroughs. Wolkoff left it to Cohen to vet artists, allocate space and decide how long each work lasted, on three conditions: no pornography, no politics and no religion.

“I ran a pretty tight ship” enforcing the rules and cleaning up any illegal tags on nearby businesses, Cohen said in an interview.

“He did a wonderful job,” Wolkoff said by phone from his office on Long Island. “I loved what they did.”

Over the next decade, about 11,000 paintings came and went. The site attracted not only “graffiti writers,” as the artists call themselves, from all over the world, but also hip-hop musicians and breakers, as well as tourists.

“5pointz became a destination spot because it tacitly offered an authentic New York City experience,” said Gregory Snyder, a sociologist at Baruch College and author of “Graffiti Lives: Beyond the Tag in New York’s Urban Underground.”

While graffiti was also permitted at a few other locations in the city, Snyder said, 5Pointz was unique in its scale.

But as the surrounding neighborhood of Long Island City transformed from an industrial waterfront with a quiet residential community and thriving arts scene into a hip, desirable area for residents fleeing Manhattan rents, Wolkoff made plans to demolish the warehouses and replace them with two residential towers.

New development rises in Long Island City, N.Y., at the former site of warehouses that were turned into an outdoor graffiti gallery.
(Carolyn Cole / Los Angeles Times )

In 2013, Cohen and 16 other artists filed suit, hoping to stop Wolkoff from destroying their art along with the buildings.

Judge Frederic Block of New York’s Eastern District granted a temporary restraining order but later lifted it, prompting Wolkoff to immediately cover the artwork in white paint in November 2013.

“It was the worst funeral I’ve ever been to,” Cohen said of visiting the site afterward. “It was like a bunch of zombies walking around.”

Cohen and his fellow artists renewed their suit, arguing that Wolkoff had destroyed their work in a “gratuitous, willful and wanton” manner. Now they were seeking a declaration from the court that Wolkoff violated the law and unspecified damages for their financial losses and emotional and reputational injuries.

Wolkoff says he did nothing wrong. “Every artist that sued me whitewashed the one before them. For 20 years, they each whitewashed over each other,” he said. “When I whitewashed, they sued me.”

In 2014, he tore the buildings down.

The lawsuit hinges on a federal law called the the Visual Artists Rights Act of 1990.

A subsection of copyright law, the act grants visual artists the right to claim or disclaim a work and to protect their work from mutilation or distortion that would harm their honor or reputation. And if the art is of “recognized stature,” the act can be invoked to prevent their work from being destroyed.

The law, however, does not define “recognized stature,” and it has been relatively untested in the courts, said Philippa Loengard, who teaches art law at Columbia Law School and was not involved in the case.

“You can look at it in a variety of ways,” Loengard said. “First of all, what is ‘recognized stature’? Who has to recognize the stature? Is each work individually a piece of recognized stature, or was 5Pointz as a whole of recognized stature?”

The trial, which began in October and lasted three weeks, centered in part on those questions. The plaintiffs’ attorney, Eric Baum, argued that the works did rise to the standard and that their creators were entitled to receive 90 days’ written notice of Wolkoff’s intentions and the opportunity to remove or preserve their work.

Wolkoff’s attorney, David Ebert, argued that the plaintiffs had known for years that the buildings were going to come down and that by painting over one another’s works, they had regularly done the same thing as Wolkoff.

Jonathan Cohen, with some of his signature paintings, ran the outdoor 5Pointz Aerosol Art Center with the blessing of the buildings' owner.
(Carolyn Cole / Los Angeles Times )

Last month a jury decided in favor of the artists, finding that Wolkoff did unlawfully destroy graffiti art at 5Pointz, including Cohen’s signature paintings of anthropomorphized light bulbs and the murals of Mother Earth and the Dos Equis man.

But in a quirk of federal procedure, the jury’s finding is only a recommendation. The judge will consider the evidence and testimony independently and make a final determination, likely next year.

If he upholds the verdict, it could have important implications.

“It shines a different kind of light on graffiti as a whole,” said James Espino, the owner of Scrap Yard, a SoHo art supply store for street artists. “It’s not just graffiti as vandalism. It’s art.”

But Loengard said any such victory would be short-lived.

“It’s going to be a Pyrrhic victory,” she said. “These individual artists may be compensated, but what is going to be the long-term effect [is] buildings don’t allow public art because they don’t want to face damages.”

While the case drags on, two skyscrapers that will provide approximately 1,100 rental units continue to shoot up at the old 5Pointz site. A handful of paintings on warehouses across the street are all that remain of the buildings’ previous identity — and the name, which will apply to the new buildings.

Wolkoff said he plans to invite artists to paint again, this time under written agreements.

The invitation, he said, will extend to those who sued him.

Twitter: @AgrawalNina


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