Rebecca Tushnet

This VARA dispute makes some interesting moves on irreparable harm—it’s hard to see why courts are still stuck in “copyright/TM harm is irreparable” given what they’re doing elsewhere.

Plaintiffs sought to prevent the destruction of their graffiti art on the exterior of defendants’ buildings, which are scheduled for demolition.  The art has now been painted over; the opinion explains the court’s decision to deny a preliminary injunction against the destruction.

Because of the art, the buildings became a significant tourist attraction known as 5Pointz.  One of the pieces in question:

VARA protects against the destruction of works of visual art, but only if they are works of “recognized stature.” To figure out whether plaintiffs’ work qualified, the court went through the history of the art.  Cohen and Wolkoff, the effective owner of the buildings comprising 5Pointz, agreed that the buildings had become a place for distasteful graffiti.  To control the problem, Cohen approached Wolkoff in 2002 to become the curator, and Wolkoff agreed; Cohen was one of the principal contributors to the art and Wolkoff liked his work, though nothing was put in writing.

Under Cohen’s supervision, the quality of the art improved and the site “evolved into a mecca for high-end works by internationally recognized aerosol artists” and a “New York must-see.”  But Wolkoff planned to knock down the buildings to make room for two apartment complexes.  The planning commission required that defendants include 75 affordable housing units and 3,300 square feet of exterior art panels “to be used to maintain artist street wall art in the area.” There was no feasible way to incorporate the existing art into the new buildings.

The parties’ experts understandably disagreed about whether the 24 works at issue were of “recognized stature,” as required by VARA.  Much of the plaintiffs’ testimony “did not differentiate between these discrete words, and by and large assumed that if the work had artistic merit it was ipso facto of recognized stature.”  Defendants’ expert took a restrictive view, opining that a work of recognized stature should be at a level where scholars agree that it is “changing the history of art.”  (OK, I know there’s not much help in the legislative history, but I can’t imagine that’s the standard!)  The art at 5Pointz was not recognized by scholarly works.  Although the expert acknowledged 5Pointz’s recognition as a tourist attraction, she believed that this wouldn’t satisfy VARA unless visitors came to see a particular work, in which case it would be a work of recognized stature even without scholarly recognition.

By contrast, plaintiff’s expert, whose testimony the court found credible, focused on the works’ quality.  She opined that “recognition” meant “there’s enough people that know what [the work] looks like, and feels like and what it’s trying to impart; that it would be, to me, if it was missing from the canon of art history, that it would be a loss.”  She testified that 5Pointz’s public exposure conferred the requisite stature, and pointed to a documentary he made featuring the site.  She also testified about the general reputation of the artists who contributed works, contending that their recognition conferred significance on any work they did.

The court then turned to the works’ ephemerality.  Wolkoff always told Cohen that he’d be knocking down the buildings, and there were numerous public statements by Cohen and other artists indicating that they knew the works were temporary.  Cohen allowed some works to be painted over; others he deemed “permanent,” meaning that they would last “[a]s long as [he was] there and the operation’s there.” He chose special places for them—mostly high up, and all around the building.  When a collapsed staircase was removed in 2009, the whole building was painted over with the exception of Lady Pink’s “Green Mother Earth.”  Since then, consistent with past years, about “1,000 new images” had been placed on the buildings each year.  At the preliminary injunction hearing, about 350 survived.

Cohen said in an interview: “Anyone can paint. But not everyone’s art stays up for long. Some works last 12 hours; other pieces remain for two years.” Another artist, Danielle Mastrion, painted a celebrated portrait in July 2013, even though she had “been hearing for years that there’s always a chance that the building can come down,” and was “aware that [the owners] were obtaining approval to knock down the building at the time [she] put the piece on the building.”  Eighteen of the 24 works for which VARA protection was claimed were painted after 2010, and 8 were painted in September, weeks after the planning commission approved the development plan. Thus, “Cohen and his fellow plaintiffs undoubtedly understood that the nature of the exterior aerosol art on Wolkoff’s buildings was transient, and that all of the works that he allowed to be painted on the buildings would last only until they would be demolished to make room for Wolkoff’s housing project.”

The court concluded that aerosol art can be visual art protected by VARA.  But VARA only protects a work.  There was no authority to preserve 5Pointz as a tourist site.  Thus, the court’s inquiry was limited to whether a particular work that was destroyed was one of “recognized stature.”  The court concluded that at least some of the 24 works, such as Lady Pink’s “Green Mother Earth,” could be shown to be of recognized stature, though that was for a full merits determination.

For preliminary injunctive relief, though, irreparable harm was required, including a showing that damages were inadequate.  And here the court gave short shrift to any nonmonetary interests, which might seem like an odd result in a moral rights case: “plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings; and VARA—which makes no distinction between temporary and permanent works of visual art—provides that significant monetary damages may be awarded for their wrongful destruction.”  Though the court emphasizes the temporary nature of this art, its reasons don’t seem so limited: “paintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace. Here, the works were painted for free, but surely the plaintiffs would gladly have accepted money from the defendants to acquire their works, albeit on a wall rather than on a canvas.”  In addition, the court found that “plaintiffs’ works can live on in other media,” specifically photography.  The works remained protected by copyright law “and could be marketed to the general public—even to those who had never been to 5Pointz.”

But, whether this was part of irreparable harm or of balancing hardships, “the ineluctable factor which precludes either preliminary or permanent injunctive relief was the transient nature of the plaintiffs’ works.”  Cohen always knew that the buildings were coming down “and that his paintings, as well as the others which he allowed to be placed on the walls, would be destroyed.”  The court was particularly distressed by the recent creation of many of the paintings, after the planning commission gave its final approval to the new construction.  “In a very real sense, plaintiffs have created their own hardships.”

Still, defendants shared some responsibility; Wolkoff “gave his blessings to Cohen and the aerosol artists to decorate the buildings, and he did not choose to protect himself from liability by requiring VARA waivers.”  Also, while he was a genuine art lover, he also benefited economically from all the attention to the site.  Since VARA protects even temporary works from discussion, the judge suggested that damages might ultimately be “significant” if a trial determined that the works were of recognized stature.

The public interest would be served by the new apartments, including affordable housing, and its aesthetic interests would be addressed by the new exterior surface available for art.  The court didn’t conceal its preference for defendants to do even more, presumably by way of settlement: “They can make much more space available, and give written permission to Cohen to continue to be the curator so that he may establish a large, permanent home for quality work by him and his acclaimed aerosol artists. For sure, the Court would look kindly on such largesse when it might be required to consider the issue of monetary damages; and 5Pointz, as reincarnated, would live.”