On February 12, 2018, the United States District Court for the East District of New York (the Court) filed its judgment in Cohen v G&M Realty LP. The Court awarded 21 graffiti artists a total of $6.7 million in damages for violation of their rights under the Visual Artists’ Rights Act of 1990 (VARA). The defendants, Gerald Wolkoff and his real estate entities, owned warehouses known as the 5Pointz complex, on which the graffiti artists’ works were displayed.

In the US, VARA gives rise to rights similar to moral rights under the Canadian Copyright Act. VARA gives visual artists the right to sue to prevent the destruction of a work of “recognized stature.” Following a three-week trial, a jury found that most of the works asserted by the plaintiffs were of a “recognized stature”, and therefore deserving of VARA protection. Although the jury’s decision was a non-binding advisory finding, the Court also found that most of the plaintiff’s works were entitled to VARA protection, for largely the same reasons.

The Court awarded a large portion of the damages due to the manner in which Mr. Wolkoff’s wilfully destroyed the works. Mr. Wolkoff whitewashed the works on the 5Pointz complex after a failed motion by the plaintiffs for a preliminary injunction, without waiting for the Court to issue its reasons for the motion. The reasons, released just eight days after the Court informed the parties of its decision, cautioned the defendant that it could be exposed to “potentially significant monetary damages” if the artwork was destroyed.

The decision is significant, as this case is the first time that graffiti artists have had their work recognized as deserving of VARA protection. However, some commentators have warned that it may have a chilling effect on graffiti art, as developers and property owners may be more reluctant to allow or condone graffiti artists’ operating on their property.

Summary by: David Bowden

 

E-TIPS® ISSUE

18 02 21

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