The 5Pointz Developer Ordered to Pay Street Artists $6.8 Million for Whitewashing Their Work Is Now Pushing Back

Gerald Wolkoff's attorneys argue that graffiti doesn't have the same legal protections as fine art.

Art from 5Pointz by Kid Lew, as included in Google's Street Art Project.
Art from 5Pointz by Kid Lew, as included in Google's Street Art Project.

Real estate developer and former owner of the 5Pointz graffiti mecca Gerald Wolkoff is appealing a judge’s order that he pay $6.8 million to a group of street artists after he whitewashed their works from his building in Long Island City, Queens.

The appeal, filed September 21 in the US Court of Appeals for the Second Circuit, asserts that the art in question was not actually protected under the Visual Artists Right Act, or VARA, as a jury previously determined. According to the filing, VARA requires that assessing whether a work has achieved the proper level of recognition must be done before it’s destroyed, rather than through “subjective assessments of the work’s ‘quality'” after the fact. It also doesn’t apply to temporary or ephemeral works or art such as graffiti, the appeal says.

The filing goes on to claim that the court erred when it imposed the maximum amount of statutory damages for the artists, particularly given that Wolkoff did not willfully violate VARA. This is indicative of a bias against Wolkoff, his attorneys claim, and they ask that if the case is sent back for reconsideration, it be reassigned to a different judge.

“There are circumstances where ‘both for the judge’s sake and the appearance of justice, an assignment to a different judge is… in the public interest, especially as it minimizes even a suspicion of partiality,’” they write.

The appeal claims that the judge, Frederick Block, conveyed his impartiality through his court’s “repeated statements regarding its affinity for the works at issue, its dislike for the defendants, and its stated desire to ‘find a lawful means of being able to support aerosol art’ as protected by VARA.”

In February, Judge Block awarded $150,000 for each of the 45 works for a total award of $6.75 million. Wolkoff had permitted the artists to work at the graffiti mecca for years, but says he always made it clear that the building would eventually be torn down to make way for a new structure. In their suit against Wolkoff, the artists alleged he violated their rights when he whitewashed their work as part of preparations to destroy the 5Pointz building complex to make way for new condos. Block’s decision was viewed as a decisive victory for street artists.

An attorney for Wolkoff’s corporation, G&M Realty, declined to comment. The attorney for the artists did not immediately respond to a request to comment.

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