A Dangerous Undertaking

The case centers around a group of warehouses in Long Island City, NY, owned by Defendant G&M Realty. The blank warehouse walls naturally attracted the graffiti artists in the area, and the buildings were soon covered with ugly scrawls. Enter Jonathan Cohen, graffiti artist and lead plaintiff in the eventual suit. Cohen approached Gerald Wolkoff, the principal owner of G&M, in 2002 and offered to become the curator of the warehouse walls. Cohen would invite talented graffiti artists of his choosing to decorate the warehouses, and would prohibit all others from leaving graffiti. Wolkoff agreed (orally) to this arrangement, and Cohen set about creating the site that would come to be known as “5Pointz.”

True to his word, Cohen carefully selected talented, internationally recognized graffiti artists to paint at 5Pointz. As the walls filled with paintings, people took notice and 5Pointz quickly became a major tourist attraction. Tour groups flocked to see the collection of outdoor art. The site became a favorite venue for concerts, fashion shows, and photo shoots. Part of the movie “Now You See Me,” starring Morgan Freeman, Woody Harrelson and Michael Caine, was shot at 5Pointz.

But all was not perfect. Every year, Cohen and the other artists heard rumors that the owners planned to demolish the warehouses to build apartments. Wolkoff swore that he had told Cohen about the development plans back in 2002, before 5Pointz got started. The graffiti artists, however, decided to cross that bridge when they came to it and continued to beautify 5Pointz with their works. Even after Wolkoff got approval in August, 2013 to build his apartments, the artists continued to generate new works on the walls of the doomed warehouses.

At the last minute, Cohen and 16 other artists sued for an injunction on the demolition. They claimed that their moral rights under VARA allowed them to prevent the destruction of their art works.

VARA and the American Moral Rights Experiment

The rights asserted by the plaintiffs are “moral rights,” rights grounded in the artists' emotional connection to their work. Because they are not based in property law, moral rights allow artists to maintain control over their work even after it is sold. Common moral rights allow artists to choose which name appears on their work or to prevent physical damage to their works.

Moral rights are essentially a European idea; more specifically a French idea. In French law, a work of art is an extension of the artist, and moral rights exist as a matter of natural law. When the Berne Convention was drafted, moral rights were included as a matter of course.

In the United States, copyright is meant to incentivize the creation of art. It is a property interest, not an element of the artist's personhood. For most of American history, these philosophical underpinnings led lawmakers to reject moral rights.

After the United States joined the Berne Convention in 1988, however, pressure mounted to introduce European-style moral rights into the Copyright Act. This movement culminated in the passage of VARA, which created the awkwardly numbered section 106A of the Copyright Act. See , http://bit.ly/18xhtqV. The new section granted artists moral rights, including the right to prevent the destruction of their works. At least some artists. Sometimes.

Unwilling to introduce the full range of moral rights for all works, Congress saw fit to limit moral rights to works of visual art. The right to prevent destruction of a work is further restricted to works “of recognized stature.” 17 U.S.C. '106A(a)(3)(B).

The Meaning of 'Recognized Stature'

What is “recognized stature,” and how precisely should a judge, “trained only to the law” go about identifying it? The U.S. District Court for the Southern District of New York has developed a hyper-literal two-part test: “stature” means the work has artistic merit, while “recognized” means that some subset of art experts or the public recognize the work. See, Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994). The court in the 5Pointz case chose to adopt this clunky formulation.

As this was a case of first impression, no standard for judging the stature of graffiti art had ever been established. Traditional notions of artistic merit quickly proved a poor fit for the plaintiff's edgy street art. The court was unable to decide between the standards presented by the competing expert witnesses. Erin Thompson, a noted art history professor and expert witness for the defendants, denied that a work could have “stature” unless it was well regarded by scholars and art critics, the traditional king-makers of the art world. Cohen, at 21. It's a fair guess that most fine art critics and art historians are not members of the subculture that gave rise to 5Pointz. The expert for the plaintiffs was gallery owner Daniel Simmons, a collector of graffiti art and a great fan of Cohen's work. Rather than relying on scholars or art critics, Simmons based his testimony on technical qualities of the works, such as form and design.

The requirement of “recognition” proved even more troublesome for the court. Although it is clear that 5Pointz as a whole is widely recognized by the public, the plaintiffs had difficulty showing that any particular work was well-known. Professor Thompson testified that there were no mentions of any of the 5Pointz works in dissertations or scholarly articles. Id. Evidently, the best way to secure protection for one's art is to offer it to a grad student who can't think of a dissertation topic.

Professor Thompson did add that public recognition could be sufficient. In order to gauge public recognition of the 5Pointz works, the professor counted Google results. She discovered that only five of the works were mentioned by name online, and three of these mentions were on the 5Pointz website. Id. at 21-22.

Faced with the relative obscurity of the individual works at issue, Simmons was reduced to arguing that the works were famous because the artists were famous. Simmons compared the works at 5Pointz to a newly discovered Picasso: If someone found a previously-unknown Picasso, the work would be “instantly famous because of the stature of the artist.” Id. at 26. People came to 5Pointz to see work, any work, by these famous artists. The court was not entirely persuaded by the “Picasso in the basement” theory, but didn't reject it out of hand.

Unable to select the appropriate standard, the court sidestepped the “dangerous undertaking” of judging the 5Pointz graffiti. The Second Circuit's preliminary injunction standard is satisfied either by a likelihood of success on the merits or by “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff's favor.” The court found enough evidence that at least some of the 5Pointz works were of “recognized stature” to raise sufficiently serious questions. The court will rule on the “recognized stature” issue at a later phase in the litigation. Whether the court will “embrace the strictures of the academic views espoused by the defendants or the more expansive ones suggested by the plaintiffs” remains to be seen. Id. at 37.

Art and Tourist Sites

Although unwilling to rule on the merits, the court was very clear on one point: The “recognized status” required for VARA protection had to pertain to individual works, not to 5Pointz as a whole. While the court admitted to being “taken by the breadth and visual impact of 5Pointz,” it did not believe that it had the authority to protect the entire site. VARA “only protects a work of visual art.” Id. at 35. In the court's view, 5Pointz is merely a tourist site, not a work of art. The only way it could be protected is if the City asserted eminent domain over the area. Id.

It may not have occurred to plaintiffs or to the court to treat 5Pointz as a single work. The Copyright Act provides for the protection of collective works, defined as a work “in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. '101. This definition seems to apply perfectly to Cohen's carefully curated project. If the overall effect of 5Pointz has artistic stature and is recognized by the public, there is no reason it should not enjoy protection under VARA.

Art Is Meant to Be Sold

Having found the first prong of the preliminary injunction standard satisfied, the court moved on to deny the plaintiffs an injunction based on the irreparable harm and balance of hardships prongs of the test. The court's discussion of irreparable harm is especially striking.

It reasoned that the harm to the plaintiffs if the paintings were destroyed would not be irreparable because monetary damages would suffice. Even though the graffiti art at issue was painted for free, the court claims that “paintings generally are meant to be sold” and “their value is invariably reflected in the money they command in the marketplace.” Cohen, at 38.

This rationale entirely undermines the concept of moral rights. As the court itself stated, moral rights “rest upon the belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved.” Id. at 5-6 (citation omitted). Thus, artists must have moral rights because economic rights alone cannot protect their investment of personhood in their art. To turn around and claim that a moral right is compensable with money is to deny the basis of the right.

The better reason for denying the preliminary injunction is the one the court gives last. The plaintiffs knew for years that the warehouses at 5Pointz were slated for demolition. Their works were painted with that knowledge. Several of the paintings were done after Wolkoff obtained approval for his building plans from the City Planning Commission. The court was correct in observing that “plaintiffs have created their own hardships.” Id. at 40. If this is taken into account, the balance of the hardships may shift in favor of the defendants.

Conclusion

Just after the court denied the plaintiff's request for a preliminary injunction, the defendants whitewashed the walls of 5Pointz. What may or may not have been works of “recognized stature” are gone. If we feel any regret at their loss, we have to ask ourselves: what are the costs of making legal protection depend on the aesthetic value of works? Are judges competent art critics, or did Holmes have it right? My bet is usually on Holmes.

Rachel S. Faulkner is an Associate at Irell & Manella LLP in Los Angeles. She can be reached at [email protected].

Oliver Wendell Holmes once wrote that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.” Bleistein v. Donaldson Lithographing Co. , 188 U.S. 239, 251 (1903). If Holmes didn't think he could do it, which of us thinks we're up to the task? Nonetheless, this was just the challenge taken up by Judge Block of the U.S. District Court for the Eastern District of New York in Cohen v. G&M Realty L.P., No. 13-CV-5612, 2013 WL 6172732 (E.D.N.Y. Nov. 20, 2013).

Plaintiff graffiti artists sought a preliminary injunction to prevent the destruction of several warehouses in Queens that bore their work. In a case of first impression, the court had to determine whether graffiti art could achieve the “recognized stature” necessary to obtain protection under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. '106A. Unable to satisfactorily apply the “recognized stature” standard, the court ultimately denied the preliminary injunction on other grounds, showcasing the difficulty of applying legal standards to aesthetic judgments.

An Unconventional Museum

The case centers around a group of warehouses in Long Island City, NY, owned by Defendant G&M Realty. The blank warehouse walls naturally attracted the graffiti artists in the area, and the buildings were soon covered with ugly scrawls. Enter Jonathan Cohen, graffiti artist and lead plaintiff in the eventual suit. Cohen approached Gerald Wolkoff, the principal owner of G&M, in 2002 and offered to become the curator of the warehouse walls. Cohen would invite talented graffiti artists of his choosing to decorate the warehouses, and would prohibit all others from leaving graffiti. Wolkoff agreed (orally) to this arrangement, and Cohen set about creating the site that would come to be known as “5Pointz.”

True to his word, Cohen carefully selected talented, internationally recognized graffiti artists to paint at 5Pointz. As the walls filled with paintings, people took notice and 5Pointz quickly became a major tourist attraction. Tour groups flocked to see the collection of outdoor art. The site became a favorite venue for concerts, fashion shows, and photo shoots. Part of the movie “Now You See Me,” starring Morgan Freeman, Woody Harrelson and Michael Caine, was shot at 5Pointz.

But all was not perfect. Every year, Cohen and the other artists heard rumors that the owners planned to demolish the warehouses to build apartments. Wolkoff swore that he had told Cohen about the development plans back in 2002, before 5Pointz got started. The graffiti artists, however, decided to cross that bridge when they came to it and continued to beautify 5Pointz with their works. Even after Wolkoff got approval in August, 2013 to build his apartments, the artists continued to generate new works on the walls of the doomed warehouses.

At the last minute, Cohen and 16 other artists sued for an injunction on the demolition. They claimed that their moral rights under VARA allowed them to prevent the destruction of their art works.

VARA and the American Moral Rights Experiment

The rights asserted by the plaintiffs are “moral rights,” rights grounded in the artists' emotional connection to their work. Because they are not based in property law, moral rights allow artists to maintain control over their work even after it is sold. Common moral rights allow artists to choose which name appears on their work or to prevent physical damage to their works.

Moral rights are essentially a European idea; more specifically a French idea. In French law, a work of art is an extension of the artist, and moral rights exist as a matter of natural law. When the Berne Convention was drafted, moral rights were included as a matter of course.

In the United States, copyright is meant to incentivize the creation of art. It is a property interest, not an element of the artist's personhood. For most of American history, these philosophical underpinnings led lawmakers to reject moral rights.

After the United States joined the Berne Convention in 1988, however, pressure mounted to introduce European-style moral rights into the Copyright Act. This movement culminated in the passage of VARA, which created the awkwardly numbered section 106A of the Copyright Act. See , http://bit.ly/18xhtqV. The new section granted artists moral rights, including the right to prevent the destruction of their works. At least some artists. Sometimes.

Unwilling to introduce the full range of moral rights for all works, Congress saw fit to limit moral rights to works of visual art. The right to prevent destruction of a work is further restricted to works “of recognized stature.” 17 U.S.C. '106A(a)(3)(B).

The Meaning of 'Recognized Stature'

What is “recognized stature,” and how precisely should a judge, “trained only to the law” go about identifying it? The U.S. District Court for the Southern District of New York has developed a hyper-literal two-part test: “stature” means the work has artistic merit, while “recognized” means that some subset of art experts or the public recognize the work. See, Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994). The court in the 5Pointz case chose to adopt this clunky formulation.

As this was a case of first impression, no standard for judging the stature of graffiti art had ever been established. Traditional notions of artistic merit quickly proved a poor fit for the plaintiff's edgy street art. The court was unable to decide between the standards presented by the competing expert witnesses. Erin Thompson, a noted art history professor and expert witness for the defendants, denied that a work could have “stature” unless it was well regarded by scholars and art critics, the traditional king-makers of the art world. Cohen, at 21. It's a fair guess that most fine art critics and art historians are not members of the subculture that gave rise to 5Pointz. The expert for the plaintiffs was gallery owner Daniel Simmons, a collector of graffiti art and a great fan of Cohen's work. Rather than relying on scholars or art critics, Simmons based his testimony on technical qualities of the works, such as form and design.

The requirement of “recognition” proved even more troublesome for the court. Although it is clear that 5Pointz as a whole is widely recognized by the public, the plaintiffs had difficulty showing that any particular work was well-known. Professor Thompson testified that there were no mentions of any of the 5Pointz works in dissertations or scholarly articles. Id. Evidently, the best way to secure protection for one's art is to offer it to a grad student who can't think of a dissertation topic.

Professor Thompson did add that public recognition could be sufficient. In order to gauge public recognition of the 5Pointz works, the professor counted Google results. She discovered that only five of the works were mentioned by name online, and three of these mentions were on the 5Pointz website. Id. at 21-22.

Faced with the relative obscurity of the individual works at issue, Simmons was reduced to arguing that the works were famous because the artists were famous. Simmons compared the works at 5Pointz to a newly discovered Picasso: If someone found a previously-unknown Picasso, the work would be “instantly famous because of the stature of the artist.” Id. at 26. People came to 5Pointz to see work, any work, by these famous artists. The court was not entirely persuaded by the “Picasso in the basement” theory, but didn't reject it out of hand.

Unable to select the appropriate standard, the court sidestepped the “dangerous undertaking” of judging the 5Pointz graffiti. The Second Circuit's preliminary injunction standard is satisfied either by a likelihood of success on the merits or by “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff's favor.” The court found enough evidence that at least some of the 5Pointz works were of “recognized stature” to raise sufficiently serious questions. The court will rule on the “recognized stature” issue at a later phase in the litigation. Whether the court will “embrace the strictures of the academic views espoused by the defendants or the more expansive ones suggested by the plaintiffs” remains to be seen. Id. at 37.

Art and Tourist Sites

Although unwilling to rule on the merits, the court was very clear on one point: The “recognized status” required for VARA protection had to pertain to individual works, not to 5Pointz as a whole. While the court admitted to being “taken by the breadth and visual impact of 5Pointz,” it did not believe that it had the authority to protect the entire site. VARA “only protects a work of visual art.” Id. at 35. In the court's view, 5Pointz is merely a tourist site, not a work of art. The only way it could be protected is if the City asserted eminent domain over the area. Id.

It may not have occurred to plaintiffs or to the court to treat 5Pointz as a single work. The Copyright Act provides for the protection of collective works, defined as a work “in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. '101. This definition seems to apply perfectly to Cohen's carefully curated project. If the overall effect of 5Pointz has artistic stature and is recognized by the public, there is no reason it should not enjoy protection under VARA.

Art Is Meant to Be Sold

Having found the first prong of the preliminary injunction standard satisfied, the court moved on to deny the plaintiffs an injunction based on the irreparable harm and balance of hardships prongs of the test. The court's discussion of irreparable harm is especially striking.

It reasoned that the harm to the plaintiffs if the paintings were destroyed would not be irreparable because monetary damages would suffice. Even though the graffiti art at issue was painted for free, the court claims that “paintings generally are meant to be sold” and “their value is invariably reflected in the money they command in the marketplace.” Cohen, at 38.

This rationale entirely undermines the concept of moral rights. As the court itself stated, moral rights “rest upon the belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved.” Id. at 5-6 (citation omitted). Thus, artists must have moral rights because economic rights alone cannot protect their investment of personhood in their art. To turn around and claim that a moral right is compensable with money is to deny the basis of the right.

The better reason for denying the preliminary injunction is the one the court gives last. The plaintiffs knew for years that the warehouses at 5Pointz were slated for demolition. Their works were painted with that knowledge. Several of the paintings were done after Wolkoff obtained approval for his building plans from the City Planning Commission. The court was correct in observing that “plaintiffs have created their own hardships.” Id. at 40. If this is taken into account, the balance of the hardships may shift in favor of the defendants.

Conclusion

Just after the court denied the plaintiff's request for a preliminary injunction, the defendants whitewashed the walls of 5Pointz. What may or may not have been works of “recognized stature” are gone. If we feel any regret at their loss, we have to ask ourselves: what are the costs of making legal protection depend on the aesthetic value of works? Are judges competent art critics, or did Holmes have it right? My bet is usually on Holmes.

Rachel S. Faulkner is an Associate at Irell & Manella LLP in Los Angeles. She can be reached at [email protected].