5Pointz after being covered in whitewash.

The U.S. Court of Appeals for the Second Circuit on Thursday upheld a nearly $7 million ruling against a New York real estate developer who ordered the destruction of a popular art exhibition space to make way for a luxury apartment building.

A three-judge panel of the Manhattan-based appeals court ruled that Gerald Wolkoff had "willfully" violated the Visual Artists Rights Act of 1990, when he sent a team of workers in 2013 to "whitewash" dozens of graffiti artworks at the 5Pointz complex in Long Island City, Queens, which had garnered worldwide renown for its striking visual displays.

At the time, Wolkoff, who purchased the property in 1970, was locked in litigation with 5Pointz curator, Jonathan Cohen, as well as several other artists who had sued in Brooklyn federal court to preserve their art.

U.S. District Judge Frederic Block had denied the artists an injunction but emphasized that the VARA issue remained unresolved. Despite warnings that preemptive action could expose him to damages, Wolkoff nonetheless ordered the artworks removed in the eight days it took for the court to enter its ruling.

Block later ruled that 45 of the mostly temporary installations at 5Pointz had achieved "recognized stature" under VARA, which requires artists' approval before their work can be destroyed. Block, who called the whitewashing an "act of pure pique and revenge," in 2018 awarded $150,000 in statutory damages for each of the destroyed works, the maximum allowed under the statute.

On appeal to the Second Circuit, the case centered on whether the pieces at 5Pointz could qualify as having achieved "recognized stature," a term which until now has largely eluded a precise definition.

Wolkoff and his Jones Day attorneys had argued that the temporary nature of the works, combined with Cohen's own philosophy of "creative destruction," meant that the artists themselves would also be in violation of the statute when they painted over each other's work.

The Second Circuit, however, said VARA did not distinguish between permanent and temporary works, and cited a recent history of "vanishing" artworks that had achieved levels of cultural significance, ranging from Christo's "The Gates" in Central Park to Banksy's famed "Girl with a Balloon" piece of street art, which self-destructed after selling for $1.4 million at Sotheby's.

In its ruling, the panel held that protected status for works of "recognized stature" hinge on whether the pieces are "of high quality, status or caliber," as determined by the artistic community, which includes art historians, critics, curators and prominent artists.

The most important component of stature will "generally be the artistic quality" of a piece, Second Circuit Judge Barrington D. Parker wrote of behalf of the court, offering an example that criticized the work of the French impressionist Claude Monet.

"Since recognized stature is necessarily a fluid concept, we can conceive of circumstances under which, for example, a 'poor' work by a highly regarded artist—e.g., anything by Monet—nonetheless merits protection from destruction under VARA," Parker wrote in the 32-page opinion.

"This approach helps to ensure that VARA protects 'the public interest in preserving [the] nation's culture,'" Parker said. "This approach also ensures that the personal judgment of the court is not the determinative factor in the court's analysis."

The ruling also rejected Wolkoff's arguments that Block had abused his discretion in reaching his $6.75 million judgment. The record below, the court found, was replete with evidence that Wolkoff, a "sophisticated" real estate developer, had acted willfully in destroying the artwork without any legitimate reason to do so.

"The district court found that Wolkoff could have allowed the artwork to remain visible until demolition began, giving the artists time to photograph or to recover their work. Instead, he destroyed the work immediately after the district court denied the preliminary injunction and before the district court could finalize its promised written opinion," Parker wrote.

"The district court was entitled to conclude, based on this record, that Wolkoff acted willfully and was liable for enhanced statutory damages," he said.

An attorney for Wolkoff was not immediately available to comment Thursday afternoon.

Eric Baum, who represented the artists, said his clients were "thankful and humbled" by the ruling.

"The finding is a clear indication these artists' work is important and should be respected," said Baum, of Eisenberg & Baum in Manhattan. "It is also a clear message that nobody is above the law and everyone must be held accountable for their actions."

Cohen and the other 5Pointz artists were represented by Baum and Juyoun Han of Eisenberg & Baum and Christopher Robinson of Rottenberg Lipman Rich.

Wolkoff was represented by Meir Feder of Jones Day in New York.

The case was captioned Castillo v. G&M Realty.

 

Read More:

Judge Denies New Trial in Street Art Case, Faults Property Owner for 'Misleading' Court

Judge Awards $6.75M to Street Artists for Destroyed Works

Jury Finds Queens Developer Violated Street Artists' Rights