After a seven-year battle, the graffiti artists have won. The U.S. Supreme Court has declined to consider an appeal from New York City-based G&M Realty asking the court to review a February ruling that awarded millions to artists whose work at the iconic 5pointz graffiti mecca was destroyed after the developer whitewashed the building as it sought to convert the property into high-end condos.
G&M Realty’s petition, submitted in July, was denied on Monday, keeping in place a New York Court of Appeals ruling that determined the graffiti art fell under the “recognized stature” provision of the Visual Artists Rights Act and awarded 21 artists $6.75 million in enhanced statutory damages.
“Seven years later all the art is gone and cannot be brought back,” Marie Cecile Flageul, a spokesperson for the 5Pointz artists on the case, told New York City news outlet gothamist. “With this final chapter the legacy of 5 Pointz is and will be this historical recognition of the art form and a victory for visual artists and their moral rights.”
The petition had argued that imposing liability against a property owner under the “recognized stature” provision of VARA violated the due process clause of the Fifth Amendment because VARA does not define the term and “fails to provide a person of ordinary intelligence fair notice of what is prohibited.”
Scott Gant, an attorney for G&M Realty, told gothamist the term remains vague until the Supreme Court rules on its meaning.
“What it does is it leaves tremendous uncertainty for property owners because a part of our argument was that property owners cannot determine whether or not a work is of recognized stature because it is novel and undefined and subject to disagreement,” Gant, of Boies Schiller Flexner LLP, told the news outlet.
“So if a property owner is trying to figure out whether this statue applies to a given piece of work, there is no objective way to make a determination about whether it’s covered by statute or not.”
“Property owners are left with a conundrum,” Gant added.
Former G&M Realty head Gerald Wolkoff — who passed away in July, three days before the appeal to SCOTUS was filed — was sued in 2013 after it was revealed he wanted to turn the Long Island City warehouse, known as a draw for street artists, into condos, and had painted over the artwork. Jonathan Cohen, the former owner of the warehouse, who sold the building to Wolkoff in the 1970s, said Wolkoff told him the warehouse would serve as exhibition spaces and studios for artists.
Cohen and artists whose work appeared on the building sued to stop the razing of the structure under the Visual Artists Rights Act of 1990, arguing that each piece of street art is considered a “work of visual art,” and therefore constitutes copyrightable subject matter.
The Visual Artists Rights Act includes statutes “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”
At 5 Pointz, Wolkoff was the rare developer in the real estate industry who willingly allowed street artists to cover the 200,000-square-foot building with colorful graffiti and vibrant murals. As early as 1993, the developer had welcomed the artists, but no contractual agreements are known to have been signed, and the artists themselves often painted over their own work.
The two-tower 5Pointz complex is in the final stages of construction, according to New York YIMBY. Of the development’s 1,115 residential units, 223 (20 percent) are expected to be designated for affordable housing, the site said.