Real Property Law

In an action by artists against building owner for a violation of the Visual Artists Rights Act (VARA), building owner appealed from the District Court's award of statutory damages in the amount of $6.75 million. The Second Circuit affirmed, holding that the artists' temporary works had achieved recognized stature and were protected against destruction by the building's owner.

In 2002, building owner undertook to install artwork in dilapidated warehouse buildings in Long Island City. The owner enlisted a curator to turn the walls of the warehouses into exhibition space for aerosol art. Some of the works were to have short lifespans and be painted over, while the vest of the works would be displayed on "longstanding walls" which were more permanent. Over time, more than 10,000 works of art were displayed at the 5Pointz site. In 2013, building owner sought approvals to demolish 5Pointz and to build luxury apartments on the site. The curator applied unsuccessfully to have the Landmarks Commission designate the site as one of cultural significance. The curator and various artists then brought this action under VARA to prevent destruction of the site. The District Court denied the request for a preliminary injunction, holding that money damages would be sufficient to remedy any injuries proved at trial. The building owner immediately whitewashed the artwork and prohibited the artists from returning to the site to recover any work that might be removed. The District Court subsequently concluded that the building owner had violated VARA. After determining that 45 of the works had achieved recognized stature, the court awarded statutory damages of $150,000 per infringement. Building owner appealed.