The Art Lawyer's Diary

NEW YORK, Feb. 13. By Barbara T. Hoffman

Art is Not a Toilet Seat: A Tale of Moral Rights and Wrongs
21 Graffiti Artists Awarded $6.7 Million for Destroyed 5-Pointz Murals

On November 7, a six person federal jury in Brooklyn found after trial, primarily in favor a group of graffiti artists in a case brought by 21 artists in Cohen et al. v. G&M Realty et al. 1:13-cv-05612-FB-RLM, 2017 U.S. Dist LEXIS against the property owners of the 5 Pointz buildings.

Because the attorneys agreed that the jury opinion would be advisory, Judge Frederic Block was to issue an opinion. He issued his opinion on February 12, 2018 finding that graffiti art was protected as a work of visual art of recognized stature and awarding the 21 artists the maximum in statutory damages, $150,000, for a violation of VARA rights in 45 works for a total of $6.7 million.

In deciding to award the maximum in statutory damages, the Court considered the five statutory factors. "When determining the amount of statutory damages to award for copyright infringement, courts consider: (1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties." Bryant, 603 F.3d at 144. Wolkoff rings the bell on each relevant factor. The Judge noted that "Wolkoff has been singularly unrepentant. He was given multiple opportunities to admit the whitewashing was a mistake, show remorse, or suggest he would do things differently if he had another chance. He denied them all." The Court went on to state: "Thus, Wolkoff remains undeterred and unrepentant that his thoughtless act violated the law and had a devastating impact on people he claims he was trying to help...the Court has discussed at length the problematic conduct of Wolkoff during the whitewashing and on the witness stand. Needless to say, he has not helped his case. On the other hand, the artist plaintiffs have conducted themselves with dignity, maturity, respect and at all times within the law."

Stay tuned for the Art Lawyer's Diary post later this week discussing Judge Block's decision.

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