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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JONATHAN COHEN, SANDRA
Case No. 13-CV-05612(FB)(RLM)
FABARA, STEPHEN EBERT, LUIS
LAMBOY, ESTEBAN DEL VALLE,
RODRIGO HENTER DE REZENDE,
DANIELLE MASTRION, WILLIAM
TRAMONTOZZI, JR., THOMAS
LUCERO, AKIKO MIYAKAMI,
CHRISTIAN CORTES, DUSTIN
SPAGNOLA, ALICE MIZRACHI,
CARLOS GAME, JAMES ROCCO,
STEVEN LEW, FRANCISCO
FERNANDEZ, and NICHOLAI KHAN,
-againstG&M REALTY L.P., 22-50 JACKSON
AVENUE OWNERS, L.P., 22-52
JACKSON AVENUE, LLC, ACD
CITIVIEW BUILDINGS, LLC, and
MARIA CASTILLO, JAMES COCHRAN, Case No. 15-CV-3230(FB)(RLM)
LUIS GOMEZ, BIENBENIDO GUERRA,
RICHARD MILLER, KAI
NIEDERHAUSEN, CARLO NIEVA,
RODNEY RODRIGUEZ, and KENJI
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G&M REALTY L.P., 22-50 JACKSON
AVENUE OWNERS, L.P., 22-52
JACKSON AVENUE, LLC, ACD
CITIVIEW BUILDINGS, LLC, and
For the Plaintiff
Eisenberg & Baum LLP
24 Union Square East
New York, NY 10003
For the Defendant
DAVID G. EBERT
Ingram Yuzek Gainen Carroll &
250 Park Avenue
New York, NY 10177
BLOCK, Senior District Judge:
TABLE OF CONTENTS
I .................................................................. 5
II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Relevant Statutory Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. The Advisory Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. The Witnesses and Evidentiary Landscape. . . . . . . . . . . . . . . . . . . . . . . . . 13
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III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. The Advent and Evolution of 5Pointz . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B. The Walls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Covering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. Short-Term Rotating Walls vs. Long-Standing Walls . . . . . . . . . . . 19
C. The Planned Demolition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
D. The Whitewashing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. Temporary Works of Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B. Works of Recognized Stature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. Recognized Stature of Individual Artworks . . . . . . . . . . . . . . . . . . . 32
a. The Long-Standing Works . . . . . . . . . . . . . . . . . . . . . . . . . . 32
b. Other Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
C. Mutilation and Prejudice to Honor or Reputation . . . . . . . . . . . . . . . . . . . 35
V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
A. Actual Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
B. Statutory Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1. Willfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2. The Statutory Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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a. The Infringeras State of Mind . . . . . . . . . . . . . . . . . . . . . . . . . 46
b. The Expenses Saved, and Profits Earned, by the Infringer . . 47
c. Revenue Lost by the Copyright Holder. . . . . . . . . . . . . . . . . . 47
d. The Deterrent Effect on the Infringer and Third Parties . . . . 48
e. The Conduct and Attitude of the Parties . . . . . . . . . . . . . . . . . 49
3. The Statutory Damages Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
This marks the latest chapter in the ongoing saga of what has commonly become
known as the 5Pointz litigation. Plaintiffs, 21 aerosol artists, initiated this lawsuit over
four years ago by seeking a preliminary injunction under the Visual Artists Rights Act
of 1990 (aVARAa), 17 U.S.C. ASS 106A, against defendants Gerald Wolkoff (aWolkoffa)
and four of his real estate entities to prevent the planned demolition by Wolkoff of his
warehouse buildings in Long Island City and consequent destruction of plaintiffsa
paintings on the walls of the buildings.
On November 12, 2013, after a hearing, the Court issued an order denying
preliminary injunctive relief and stating that aa written opinion would soon be issued.a
ECF No. 34. Rather than wait for the Courtas opinion, which was issued just eight days
later on November 20th, Wolkoff destroyed almost all of the plaintiffsa paintings by
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whitewashing them during that eight-day interim.
In its extensive opinion the Court initially noted that Wolkoffas buildings ahad
become the repository of the largest collection of exterior aerosol art . . . in the United
Statesa and that this litigation amarks the first occasion that a court has had to determine
whether the work of an exterior aerosol artistagiven its general ephemeral natureais
worthy of any protection under the law.a Cohen v. G & M Realty L.P., 988 F. Supp. 2d
212, 214 (E.D.N.Y. 2013) (aCohen Ia).
In denying the plaintiffsa application for preliminary injunctive relief, the Court
recognized that the rights created by VARA were at tension with conventional notions
of property rights and tried to balance these rights. It did so by not interfering with
Wolkoffas desire to tear down the warehouses to make way for high-rise luxury condos,
but cautioned that adefendants are exposed to potentially significant monetary damages
if it is ultimately determined after trial that the plaintiffsa works were of arecognized
statureaa under VARA. Cohen I, 988 F. Supp. 2d at 227.
The trial has now happened. It lasted three weeks. At plaintiffsa insistence, it was
tried before a jury, but just prior to summations, plaintiffsawith defendantsa
consentawaived their jury rights. Rather than summarily dismiss the jury after it had
sat through the entire trial, the Court converted it to an advisory jury. During its charge,
the Court carefully explained the partiesa rights and obligations under VARA, including
the plaintiffsa entitlement to substantial statutory damages if the jury determined that
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Wolkoff had violated plaintiffsa VARA rights and that he had acted willfully. On a 98page verdict sheet, the jury found liability and made various damage awards in respect
to 36 of plaintiffsa 49 works of art that were the subject of the lawsuit. In every case they
found that Wolkoff had acted willfully.
Although the Court does not agree with all of the jurorsa findings, it does agree
that Wolkoff willfully violated plaintiffsa VARA rights in respect to those 36 paintings.
The Court further finds that liability and willfulness should attach to an additional nine
Given the abject nature of Wolkoffas willful conduct, the Court awards the
maximum statutory damages under VARA for each of the 45 works of art wrongfully
and willfully destroyed in the combined sum of $6,750,000.1
A. The Relevant Statutory Framework
As the Court explained in Cohen I, aVARA amended existing copyright law to
add protections for two amoral rightsa of artists: the rights of attribution and integrity.a
Cohen I, 988 F. Supp. 2d at 215. VARA has codified the right to integrity to provide
athe author of a work of visual arta the right
(A) to prevent any intentional destruction, mutilation, or other
modification of that work which would be prejudicial to his or her honor
This decision constitutes the Courtas combined findings of fact and
conclusions of law pursuant to Fed. R. Civ. P. 52(a).
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or reputation, and any intentional distortion, mutilation, or modification
of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation of
17 U.S.C. ASS 106A(a)(3).
Thus, in Cohen I, the Court held that plaintiffsa aerosol art comes under
VARAas protection as works of avisual arta, Cohen I, 988 F. Supp. 2d at 216, and
that, under ASS 106A(a)(3)(B), VARA agives the aauthor of a work of visual arta the
right to sue to prevent the destruction of [the] work if it is one of arecognized
stature,aa Cohen I, 988 F. Supp. 2d at 215. VARA also permits the artist to seek
monetary damages under ASS 106A(a)(3)(A) if the work was distorted, mutilated, or
otherwise modified to the prejudice of the artistas honor or reputation.
Section 113(d)(1) of VARA provides that
In a case in which a
(A) a work of visual art has been incorporated in or made part of a
building in such a way that removing the work from the building will
cause the destruction, distortion, mutilation, or other modification of the
work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building
either before the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, or in a written instrument executed on or
after such effective date that is signed by the owner of the building and
the author and that specifies that installation of the work may subject the
work to destruction, distortion, mutilation, or other modification, by
reason of its removal,
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then the rights conferred by paragraphs (2) and (3) of section 106A(a)
shall not apply.2
Section 113(d)(2) provides, in part, that
If the owner of a building wishes to remove a work of visual art which
is a part of such building and which can be removed from the building
without the destruction, mutilation, or other modification of the work as
described in section 106A(a)(3), the authoras rights under paragraphs (2)
and (3) of section 106A(a) shall apply unlessa
(A) the owner has made a diligent, good faith attempt without success
to notify the author of the owneras intended action affecting the work of
visual art, or
(B) the owner did provide such notice in writing and the person so
notified failed, within 90 days after receiving such notice, either to
remove the work or to pay for its removal.
Thus, ASS 113(d) provides for two possibilities when a protected work of art has
been integrated into a building subsequent to June 1, 1991, VARAas effective date.
aSection 113(d)(1) deals with works of visual art that cannot be removed without
causing destruction, mutilation, or other modifications to the work. Section 113(d)(2)
deals with works of visual art that can be removed without causing such harm.a 5
William F. Patry, Patry on Copyright ASS 16:32 (2017) (aPatrya) (emphasis added).3
Paragraph (2)anot applicable in this caseaprotects the right of attribution
by affording the artist athe right to prevent the use of his or her name as the author
of the work of visual art in the event of a distortion, mutilation, or other
modification of the work which would be prejudicial to his or her honor or
Patry participated in the drafting of VARA in his role as a Policy Planning
Advisor to the Register of Copyrights. Patry ASS 16:1 n.1. Accordingly, the Court
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Under ASS 113(d)(1), if a work is not removable without destroying, mutilating,
distorting, or otherwise modifying the work, the artistas VARA right of integrity
under ASS 106A(3) attach, and the artist may sue to prevent the destruction of the work
unless the right is waived ain a written instrument . . . that is signed by the owner of
the building and the author and that specifies that installation of the work may
subject the work to destruction, distortion, mutilation, or other modification, by
reason of its removal.a ASS 113(d)(1)(B) (emphasis added).
Under ASS 113(d)(2), if a work is removable without destroying, mutilating,
distorting, or otherwise modifying it, VARA gives the artist the opportunity to
salvage the work upon receipt of a 90 daysa written notice from the building owner
of the owneras aintended action affecting the work of visual art.a 17 U.S.C.
ASSASS 113(d)(2)(A)-(B). If the artist fails to remove or pay for the removal of the works
within the 90 days aor if the owner could not notify the artist after making a agood
faith effort,a 17 U.S.C. ASS 113(d)(2)(A)athe artistas VARA rights are deemed waived
for the removable work, and the owner may destroy them without consequences.4
Damages that may be awarded for the violation of the artistas rights of
attribution and integrity under ASS 106A(a)(3) are the same that apply for copyright
accords his treatise, which is highly regarded on all copyright issues, particular
weight when examining provisions of VARA.
Section 113(d)(2)(B) also provides that if the artist successfully removes a
work at his or her own expense, title to the work passes automatically to the artist.
See 17 U.S.C. ASS 113(d)(2)(B).
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infringement, namely actual (including profits) and statutory. 17 U.S.C. ASS 504(a). As
the House Judiciary Committee Report explained:
Section 6(a) of the bill simply amends section 501(a) of title 17 to add
those authors covered by new section 106A . . . . It thereby makes all
title 17 remedies [except criminal sanctions] available to those authors
. . . . [VARA] thereby provides for monetary damages, and for injunctive
relief to prevent future harm. The same standards that the courts
presently use to determine whether such relief is appropriate for
violations of section 106 rights will apply to violations of section 106A
rights as well.
H.R. Rep. No. 101-514, at 21-22 (1990) (emphasis added).
There is no limit to the amount of actual damages for each work, but statutory
damages for each may be anot less than $750 or more than $30,000 as the court
considers just.a 17 U.S.C. ASS 504(c)(1). If, however, the plaintiff asustains the burden
of proving, and the court finds, that infringement was committed willfully, the court
in its discretion may increase the award of statutory damagesa for each work ato a
sum of not more than $150,000.a 17 U.S.C. ASS 504(c)(2). The plaintiff is not entitled
to both actual and statutory damages but must elect one or the other abefore final
judgment is rendered[.]a 17 U.S.C. ASS 504(c)(1).
B. The Advisory Jury
aA proper demand [for a jury trial] may be withdrawn only if the parties
consent.a Fed. R. Civ. P. 38(d). Here the defendants, through counsel, consented to
submitting the case to the Court.
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Under the federal rules, where the right to a jury trial does not attach, athe
court, on motion or on its own: (1) may try any issue with an advisory jury[.]a Fed.
R. Civ. P. 39(c). aBecause advisory juries permit community participation and may
incorporate the publicas views of morality and changing common law, their use is
particularly appropriate in cases involving community-based standards.a NAACP v.
Acusport Corp., 226 F. Supp. 2d 391, 398 (E.D.N.Y. 2002) (Weinstein, J.).
a[A district court] is not bound by the findings of the advisory jury, which it
is free to adopt in whole or in part or to totally disregard[.]a Ragin v. Harry Macklowe
Real Estate Co., 6 F.3d 898, 907 (2d Cir. 1993) (quoting Sheilaas Shine Prods., Inc.
v. Sheila Shine, Inc., 486 F.2d 114, 122 (5th Cir. 1973)). a[T]he court retains the
ultimate responsibility for findings of fact and conclusions [of law] . . . in reliance
upon the advisory juryas verdict if the court so chooses, and to explain how it arrived
at those findings and conclusions.a DeFelice v. Am. Intal Life Assurance Co. of New
York, 112 F.3d 61, 65 (2d Cir. 1997).
Under these principles, the Court will take the juryas verdicts under advisement
in making its independent findings of fact and conclusions of law, especially on
issues that require judgment of the community.5
During the trial and in their post-trial brief, defendants argued that several
comments by the Court, and the Courtas rejection of defendantsa requested jury
instructions, prejudiced the jury to the point of requiring a mistrial. The Court
disagrees for the reasons stated on the record at the time of the objections.
However, even assuming arguendo that the jury had been prejudiced, because the
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The Court would be remiss if it did not pause to acknowledge the extraordinary
work of the eight jurors. Rarely were they late during the course of the extensive trial,
and the Court was impressed with their rapt attention to the difficult task that awaited
them in having to assess the defendantsa liability in respect to each of the 49 works
of art. Since the jurors had spent the better part of a month in anticipation of
deliberating, the Court was disinclined to summarily dismiss them when, at the
veritable 11th hour, the plaintiffs suddenly decided to convert the case to a bench
trial. Moreover, since 5Pointz had achieved worldwide community recognition, the
Court was keen to learn whether the jurors, as members of the community, would
view the works as having achieved recognized stature under VARA. To enhance the
integrity of their verdicts, the Court decided it best not to tell the jurors that their
findings would only be advisory.
The complexity of the litigation did not deter the jurors from making
individualized findings in respect to each of the 21 artists and their 49 works on the
98-page verdict sheet. They were tasked with having to determine whether each
destroyed work was of recognized stature and/or was mutilated, distorted, or
otherwise modified to the prejudice of the artistas honor or reputation by the
whitewashing. They found that 28 of the 49 destroyed works had achieved recognized
jury was advisory, and the Court is making its own findings of fact and
conclusions of law, any prejudice would have been harmless.
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stature, and eight more had been mutilated, distorted, or otherwise modified to the
prejudice of the artistsa honor or reputation.6 Each of the 21 plaintiffs were adversely
affected in one way or the other, and the jury had to individually assess whether
actual and statutory damages were warranted in regard to each work. It awarded a
total of $545,750 in actual damages and $651,750 in statutory damages.
C. The Witnesses and Evidentiary Landscape
Each of the 21 plaintiffs/artists testified; they were respectful, articulate and
credible. Folios for each were admitted into evidence collectively containing their
professional achievements and recognition in the form of an impressive array of
fellowships, residences, public and private commissions, teaching positions, media
coverage, and social media presence. Not surprisingly, each of the 21 Folios
contained beautiful color prints of the artistsa respective aerosol works of art which
are the subject of the lawsuit. They are appended to this opinion. It is apparent that
they reflect striking technical and artistic mastery and vision worthy of display in
prominent museums if not on the walls of 5Pointz. The Folios also contain photos
showing how almost all of these works of art were partially or wholly whitewashed
The jury also found that of the 28 works of recognized stature that were
destroyed, 20 had also been mutilated, modified, distorted or otherwise modified
in a manner prejudicial to the artistas honor or reputation.
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5Pointz was an egalitarian place. The artists came from many backgrounds.
Some of the plaintiffs testified via Skype from international residences. Many who
live in New York had immigrated from other countries to join the 5Pointz
community. One artist flew from London to testify; another came of age in rural West
Virginia. Some artists came from highly prestigious art schools; others were selftaught. Some were fixtures in elite, traditional art circles; others were simply
dedicated to street and community art. The Court was impressed with the breadth of
the artistsa works and how many of the works spoke to the social issues of our times.
The principal testimony about the advent, evolution and demolition of 5Pointz
came from plaintiff Jonathan Cohen, one of the worldas most accomplished aerosol
artists. Wolkoff had designated Cohen as 5Pointzas de facto curator, appointing him
to run the site and pick the works he thought were of merit: aI gave him permission,
plain, Jonathan, you are in charge, bring whoever you think is right to come and
display their work on my building.a Tr. at 2025:4-8.
In addition to the artists, three experts testified for the plaintiffs. Renee Vara,
a certified art appraiser, former head fine art expert at Chubb Insurance and art
professor at New York University, testified to the quality and recognized stature of
the works; Elizabeth Littlejohn, an art appraiser certified through the Appraisers
Association of America, testified to their appraisal value; and Harriet Irgang Alden,
the chief paintings conservator at Art Care NYC, testified as to the removability of
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each of the artworks from the 5 Pointz walls.
Plaintiffs also called two fact witnesses. Angelo Madrigale, Vice President and
Director of Contemporary Art at Doyle New York, an auction house, wrote a letter
upon which Vara relied in formulating her report. He testified to the artistic
importance of the works. Lois Stavsky developed a 5Pointz exhibit for Google Arts
and Culture and testified to the creation of that exhibit and why Google believed that
5Pointz was a culturally significant site.
Wolkoff was the defendantsa principal witness. He testified to his rise from a
poor childhood to become a successful real estate developer and explained his role
in the advent and success of 5 Pointz. He was adamant that the artists knew that the
day would come when the warehouse buildings bearing their works of art would
come down and be replaced by high-rise residential condos.
Although the Court believes that Wolkoff in the main testified truthfully, he
was a difficult witness. He frequently ignored or challenged instructions by the Court.
He was argumentative and prone to tangents and non-responsive answers. Eliciting
coherent testimony was a chore and was only achieved after the Court threatened to
hold him in contempt. See, e.g., Tr. at 2033:18-2034:2; 2036:19-2037:24; 2045:232047:6; 2087:22-2088:13; 2092:13-22.
In addition to Wolkoff, two experts testified for the defendants. Erin
Thompson, a professor of art history at the City University of New York and
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practicing art lawyer, testified as to the issue of recognized stature, and Christopher
Gaillard, a fine art appraiser with the art appraisal and acquisition firm Gurr Johns,
testified as to the worksa appraisal value.
The story of 5Pointz that follows comes primarily from the lips of Cohen and
A. The Advent and Evolution of 5Pointz
What became 5Pointz originated as Phun Phactory in the early 1990s. The
warehouses were largely dilapidated and the neighborhood was crime infested. There
was no control over the artists who painted on the walls of the buildings or the quality
of their work, which was largely viewed by the public as nothing more than graffiti.
This started to change in 2002 when Wolkoff put Cohen in charge. Cohen and several
other artists also rented studio space in the warehouse buildings. Collectively, they
worked to improve conditions. As Cohen explained:
We took it upon ourselves to clean the loading dock. . . . The dumpsters
were overflowing. We took it upon ourselves, we hired his employees,
we paid for the lighting. We put motion sensors up so that when you
came to the loading dock it was inviting. It actually drew you in as
opposed to scaring you away.
Id. at 1448:20-1449:3.
Wolkoff recognized the merit of the art. As he acknowledged: aI liked it and
they did more and more and I thought it was terrific. They were expressing
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themselves.a Id. at 2082:4-5. And he approved of the job Cohen did in curating the
art: aI have no feelings even today against Jonathan Cohen. I thought he was terrific
handling my building. . . . Anything to do with art I left up to Jonathan. He had good
taste in the artists that came there.a Id. at 2086:13-17.
Until Wolkoff decided over a decade later that the economic climate was ripe
to convert the site into luxury condos, he and Cohen had a copacetic relationship.
But nothing was ever reduced to writing and Wolkoff only verbally laid out
three rules for what could be put on the walls: no pornography, no religious content,
and nothing political. In his role, Cohen established a system of rules for both the
creation and curation of the art, spending seven days a week without pay to bring
5Pointz to fruition.
Cohen oversaw the site, kept it clean and safe, allotted wall space, and
explained the siteas rules and norms to new artists. Over time, crime in the
neighborhood dropped and the site became a major attraction drawing thousands of
daily visitors, including busloads of tourists, school trips, and weddings. Movie,
television, and music video producers came; it was used for the 2013 motion picture
Now You See Me, starring Jesse Eisenberg and Mark Ruffalo, and was the site of a
notable tour for R&B singer Usher.
As the plaintiff Castillo explained, astreet art became a new form,a which anow
has become an industry.a Tr. at 202:6, 202:10. And 5Pointz became athis outdoor
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museum where kids can touch the wall, and . . you canat do that at a museum. You
canat go and touch a Van Gogh or like a Mona Lisa.a Id. at 202:2-5.
Wolkoff had nothing to do with day-to-day operations. Under Cohenas control,
he witnessed his buildings emerge as a mecca for the worldas largest collection of
quality outdoor aerosol art.
B. The Walls
5Pointz was a site of creative destruction; most artworks had short lifespans
and were repeatedly painted over by successive artists. The rules behind covering
were important; as virtually every artist testified, agoing overa someone elseas piece
without permission was a sign of disrespect that could cause conflicts. Going over
another piece partially or sloppily was another insult. As Cohen explained:
[Y]ou respect your wall, you clean up when youare done, you cover what
you go over completely. If you do not cover what you went over, you do
not last. That was rule number one. Respect in our game is everything,
and if you donat have respect then you donat get respect.
Tr. at 1443:15-22. As a result, Cohen established an elaborate system of rules and
norms governing how long pieces would remain and when a piece could be covered
by a new artwork. As he testified:
THE COURT: Let me ask you a question. Can anybody paint over your
paintings without your permission, aside from vandalism?
A: No. Everything was done with permission and there was a system
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that grew over the period of time I was there. You know, we perfect as
we go along.
Id. at 1423:18-23.
2. Short-Term Rotating Walls vs. Long-Standing Walls
5Pointz was organized into short-term rotating walls and long-standing walls.
The short-term walls would change on a daily or weekly basis. As Cohen explained:
aThere were allocated spaces that were for straight beginners that had no idea how
to paint. And those, I would say you could utilize the space, but it more than likely
will be gone tomorrow or the next day or whatever.a Id. at 1441:18-22. aShort-term
rotating walls, it was communicated up front so theyad know you could have several
weeks or whatever.a Id. at 1444:13-15.
On the other hand, pieces on long-standing walls were more permanent,
although a high-quality piece could achieve permanence even if not initially placed
on a long-standing wall; but an artistas reputation was not sufficient to secure longstanding status. As Cohen further explained:
[T]he prime real estate that faces the train were the most sought after
spots to paint and those went to more advanced writers. Youave got to
understand, as well, because you are an advanced writer doesnat mean
that you are going to perform on an advanced level. You may just want
to blow off steam one afternoon, but that doesnat mean your piece
should last a long time. And you could be a beginner and do the
performance of your lifetime and produce a piece that is so amazing that
itas decided it will stay.
Id. at 1441:22-7.
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While Cohen had the final say as to the duration of the pieces, he always spoke
with the artists about their planned lifespan and eventual replacement. As he testified:
aFor long term productions, where people invested time and money, I would
communicate with them. I would reach out to them. In some instances, I would tell
them to come back and actually egg them on to do something real better. As the bar
got raised, everybody performed better.a Id. at 1444:14-19.
In other words, 5Pointz operated not just as a creative space, but a competitive
place. Artists would compete to outdo one another and earn prominent placement on
a long-standing wall. In addition to the walls facing the passing 7 train, which were
seen by millions of commuters, the artists prized the walls near the loading docks,
which had the most foot traffic, and the walls inside the buildings, which were
generally long-standing. While as many as 10,000 works were destroyed while Cohen
was in charge, it was not anarchy. Most of the best works by the best artists achieved
permanent or semi-permanent placements on the long-standing walls.
C. The Planned Demolition
Starting in 2011, rumors that Wolkoff had plans to shut down 5Pointz and turn
it into luxury condos began to concern the artists. In May 2013, the rumors became
reality: Cohen learned that Wolkoff had started to seek the requisite municipal
approvals for his condos.
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Hoping to save 5Pointz, Cohen filed an application with the City Landmark
Preservation Commission to preserve the site as one of cultural significance. It was
denied because the artistic work was of too recent origin. See Letter from NYC
Landmarks Preservation Commission, August 20, 2013, ECF No. 31.
Cohen also sought funding to buy the property, which had been valued at $40
million. However, this fell through in October 2013 when Wolkoff obtained a
necessary variance, instantly raising the property value to more than $200 million.
The higher price was out of reach of Cohenas potential investors. Plaintiffs then
initiated this litigation to enjoin Wolkoff from destroying 5Pointz.
D. The Whitewashing
As soon as the Court denied the plaintiffsa application for preliminary
injunction, Wolkoff directed the whitewashing of virtually all the artwork on the
5Pointz site with rollers, spray machines, and buckets of white paint.7
The whitewashing was inconsistent. Some works were completely covered in
white paint. Others were only partially covered. Some were fully covered, but by such
a thin layer of paint that the artwork was easily visible beneath the paint. What was
consistent was that none of the covered works was salvageable. And plaintiffs were
no longer allowed on the site, even to recover the scattered remnants of their ruined
Some other colors were sporadically used, including black and blue paint,
but the vast majority of the whitewashing was done with white paint.
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Since their works were effectively destroyed,8 plaintiffs were relegated to
seeking monetary relief under VARA.
A. Temporary Works of Art
Defendantsa overarching contention is that plaintiffs knew that the day would
come when the buildings would be torn down and that, regardless, the nature of the
work of an outdoor aerosol artist is ephemeral.9 They argue, therefore, that VARA
should not afford plaintiffs protection for their temporary works.10
The Court notes that one work, Richard Milleras Monster II, survived the
whitewashing but was later destroyed by a backhoe. The plaintiffs did not have
direct evidence of whitewashing for seven others because the works were inside a
building to which they had no access after the whitewashingaJonathan Cohenas
Character and Inside Wildstyle, Luis Gomezas Inside King Kong, Richard Milleras
Monster I, and Luis Lamboyas World Traveler, Logo for Clothing Brand aka
Monopoly Man, and Electric Fish. However, several plaintiffs testified that they
believed the inside works were destroyed in the whitewashing, and the Court
credits the plaintiffsa testimony that they were not allowed onto the property to
retrieve the works after the whitewash and were threatened with arrest if they
While Cohen acknowledged that he knew that Wolkoff intended to
eventually tear down the buildings to make way for his new condos, other
plaintiffs testified that they had no such knowledge. Regardless, even if the artists
were allowed to waive their VARA rights orally (which they were not), none of
the other artists ever spoke to Wolkoff. As he acknowledged at trial: aI didnat
know any of the artists. I only dealt with Jonathan Cohen.a Tr. at 2023:16-17.
Defendants also assert the affirmative defense of aabandonment.a It is
meritless since it only affects ownership of the workas copyright. See Capitol
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VARA does not directly address whether it protects temporary works.
However, in the context of works on buildings, it is clear from 17 U.S.C. ASS 113(d)
that temporary works are protected. Moreover, relevant case law conceptually
supports this conclusion. In short, there is no legal support for the proposition that
temporary works do not come within VARAas embrace.
First, ASS 113(d)(1) specifies that an unremovable work incorporated in a
building is protected by VARA unless the artist waives his or her rights in a writing
signed by both the artist and the building owner. If the building owner could orally
inform the artist that the building is coming down someday, and thereby convert the
work into an unprotected temporary work, the written consent provision would be
rendered nugatory. As the House Judiciary Committee Report explains: aThe purpose
of [the written waiver] is to ensure that the author is made fully aware of the
circumstances surrounding the installation and potential removal of the work and has
nevertheless knowingly subjected the work to possible modifications that would
otherwise be actionable under section106A.a H.R. Rep. No. 101-514, at 21. And as
Records, Inc. v. Naxos of America, Inc., 372 F.3d 471, 483 (2d Cir. 2004) (holding
aabandonment of copyright requires a(1) an intent by the copyright holder to
surrender rights in the work; and (2) an overt act evidencing that intent.a
(emphasis added)). Defendants have not pointed to any overt act showing an intent
to abandon ownership. Quite the opposite: The moment the artists learned of
defendantsa intent to destroy their works, they began legal proceedings to save
them. This was the antithesis of abandonment.
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Patry adds: aIn light of this provisionas purpose of ensuring that artists be made aware
fully of the circumstances surrounding installation and potential destructive removal,
it should be strictly construed.a Patry ASS 16:33.
Second, ASS 113(d)(2), specifying that artists are entitled to 90 daysa written
notice to allow them to salvage their removable works, contemplates that such works
may be temporarily on the side of a building. Thus, VARA resolves the tension
between the building ownersa rights and the artistsa rights through ASS 113(d), not by
excluding temporary works from protection.
Of the limited available case law, Board of Managers of Soho International
Arts Condominium v. City of New York, 2003 WL 21403333 (S.D.N.Y. June 17,
2003) perhaps best illustrates this point. There, an artist sought to prevent his work
from being permanently removed from the wall of a condo under VARA. There was
conflicting testimony as to whether the work was intended to be kept on the wall
permanently or temporarily. Nonetheless, the Court, in denying summary judgment,
held VARA only allowed the artist to remove the mural, not keep it in its place. The
court rejected the artistas argument that removal was atantamount to the Workas
destructiona as a[n]owhere in the [dictionary] definition of aremovea does the
temporality of the act of removal arise.a Id., at *10. Therefore, it was aclear to the
Court that what Congress intended in bifurcating ASS 113(d)as protections was to
separate removal situations based not on the temporality of the removal but on the
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consequences of the removal.a Id.11
Thus, VARA draws no distinction between temporary and nontemporary works
on the side of a building, particularly when all that makes a work temporary is the
building owneras expressed intention to remove or destroy it. VARA protects such
works; how it protects them is governed by the carefully crafted provisions of
ASS 113(d) based on the removability of the works, not their permanence.12
Also supporting the conclusion that VARA applies to temporary works is 17
U.S.C. ASS 106A(c)(1), which provides that modifications that are athe result of the
passage of time or the inherent nature of the materialsa are not violations of VARA.
This exception was applied in Flack v. Friends of Queen Catherine Inc., 139 F. Supp.
2d 526 (S.D.N.Y. 2001), where the court dismissed a VARA claim because the head
of a statue was exposed to the elements, causing the clay to deteriorate, but there was
no evidence that the defendant otherwise directly damaged the work. 139 F. Supp. 2d
at 534-35. The exception is not applicable here. The whitewashing was not caused by
the apassage of timea or the ainherent nature of the materialsa; it was caused by
A key difference between Board of Managers and this litigation is that the
Board of Managers artwork was installed before VARA was enacted. This meant
that the ASS 113(d)(1) written waiver provision did not apply in that case, and if a
jury would find that the work was unremovable, VARA would not protect it.
However, any unremovable work at 5Pointz would be protected by VARA
because Wolkoff failed to obtain a written waiver.
Damages under VARA could, of course, vary depending on whether the
works were permanent or temporary.
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Wolkoff throwing paint on the works.
Thus, Congress chose to exclude protection for the passage of time and natural
deterioration but not for other types of temporary works. Under the principle of
statutory interpretation expressio unius est exclusio alterius (the expression of one
thing implies the exclusion of others), this choice lends support to the conclusion that
there is no categorical exception for temporary works.
Moreover, the First Circuit has held that VARA protects unfinished works.
Mass. Museum of Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38, 65 (1st Cir.
2010). An unfinished work is inherently in a temporary state since the ultimate goal
is always to finish the work; thus, VARA protects the interim, unfinished work even
though it is only temporarily in that form.13
Analogy to traditional copyright law is also relevant. Under the Copyright Act
aof which VARA is a partaa work is aacreateda when it is fixed in a copy or
phonorecord for the first time[.]a 17 U.S.C. ASS 101. And a work is aafixeda in a
tangible medium of expression when its embodiment in a copy or phonorecord, by or
under the authority of the author, is sufficiently permanent or stable to permit it to be
perceived . . . for a period of more than transitory duration.a Id. (emphasis added).
Contrast Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003), which held that
a poster created for a one-time event was not protected by VARA because it was
advertising material, an express exception. Notably, the Court declined to adopt
the district courtas alternative reasoning, which would have held the work was not
of recognized stature because it was made for a one-time event.
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For copyright protection, therefore, fixation for even a short period will suffice.
Thus, in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d
Cir. 2008), the Second Circuit held that copies of television programs were not
capable of being perceived afor a period of more than transitory durationa when they
existed in the defendantas data buffers for only 1.2 seconds. 536 F.3d at 129.
However, the court suggested that a work would exist for amore than transitory
durationa if it was embodied in the data buffers for aat least several minutes.a Id. at
128. With no indication to the contrary, it is reasonable to assume that Congress
intended to apply the same minimal fixation requirement to works of visual art under
VARA. Cf. Buchel, 593 F.3d at 51 (applying ASS 101as fixation requirement to conclude
that unfinished works are protected under VARA).
In sum, ASS 113(d) contemplates temporary works, ASS 106A(c) excludes only a
narrow category of temporary works unrelated to this case, and analogous case law
is consistent with the conclusion that temporary works are protected under VARA.14
B. Works of Recognized Stature
As the Court stated in Cohen I, the district courtas decision in Carter v.
Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994) (aCarter Ia), affad in part,
vacated in part, revad in part, 71 F.3d 77 (2d Cir. 1995) (aCarter IIa) remains the
Common sense also supports this conclusion. Who would argue, for
example, that if Picasso had painted Guernica on the walls of 5Pointz with the
building owneras consent it would not be worthy of VARA protection?
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seminal case interpreting the phrase arecognized statureaawhich is not defined in
VARAato require aa two-tiered showing: (1) that the visual art in question has
astature,a i.e. is viewed as meritorious, and (2) that this stature is arecognizeda by art
experts, other members of the artistic community, or by some cross-section of
society.a 861 F. Supp. at 325.
The Second Circuit on appeal never had occasion to address the correctness of
this formulation since, in reversing, it held that the work did not qualify for VARA
protection because it was made for hire. Carter II, 71 F.3d at 85-89. But one circuit
court did thereafter embrace and apply the district courtas standard for evaluating
whether a work of visual art is of arecognized stature.a
As explained in Cohen I, the Seventh Circuit in Martin v. City of Indianapolis,
192 F.3d 608, 612 (7th Cir. 1999), noted that the Carter I test amay be more rigorous
than Congress intended,a id. at 612, but nonetheless affirmed the district courtas grant
of summary judgment and its award of damages for a sculpture that had been
destroyed, under the Carter I test utilized by the district court. In doing so, it noted
that aplaintiff offered no evidence of experts or others by deposition, affidavit or
interrogatories,a but nonetheless established the workas recognized stature via
acertain newspaper and magazine articles, and various letters, including a letter from
an art gallery director and a letter to the editor of The Indianapolis News, all in
support of the sculpture.a Id.
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The circuit courtas decision in Martin appropriately recognizes, therefore, that
expert testimony is not the sine qua non for establishing that a work of visual art is
of recognized stature, and indeed the district court in Carter I cautioned that plaintiffs
need anot inevitably . . . call expert witnesses to testify before the trier of fact.a 861
F.Supp. at 325. This is in keeping with Congressas expansive recognition of the moral
rights of attribution and integrity of the visual artist and the consequent need to create
aa climate of artistic worth and honor that encourages the author in the arduous act
of creation.a Carter II, 71 F.3d at 83 (quoting H.R. Rep. No. 101-514, at 5). As the
Second Circuit noted in Carter II, therefore, the courts ashould use common sense
and generally accepted standards of the artistic community in determining whether
a particular worka is a work of visual art since a[a]rtists may work in a variety of
media, and use any number of materials in creating their works.a Id.
The same common sense should be utilized in assessing whether the visual
work is of recognized stature since a[b]y setting the standard too high, courts risk the
destruction of the unrecognized masterwork; by setting it too low, courts risk
alienating those . . . whose legitimate property interests are curtailed.a Christopher J.
Robinson, The aRecognized Staturea Standard in the Visual Artists Rights Act, 68
Fordham L. Rev 1935, 1968 (2000). Thus, as one court has held, even inferred
recognition from a successful career can be considered in determining whether a
visual artistas work has achieved recognized stature. See Lubner v. City of Los
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Angeles, 45 Cal. App. 4th 525, 531 (1996).
In the present case, the Court need not dwell on the nuances of the appropriate
evidentiary standard since the plaintiffs adduced such a plethora of exhibits and
credible testimony, including the testimony of a highly regarded expert, that even
under the most restrictive of evidentiary standards almost all of the plaintiffsa works
easily qualify as works of recognized stature.
To begin, that Jonathan Cohen selected the handful of works from the
thousands at 5Pointz for permanence and prominence on long-standing walls is
powerful, and arguably singular, testament to their recognized stature. They were
walls that spanned multiple stories, walls visible to millions on the passing trains;
walls near the entrances. Many of these works had survived for years. As 5Pointzas
curator, Cohen considered them outstanding examples of the aerosol craft. And as
Wolkoff himself acknowledged, Cohen was qualified to assess the artistic merits of
the works since ahe had good taste in the artists that came there.a Tr. at 2086:17.
They were 5Pointzas jewels.
Wolkoffas faith in Cohen was not unwarranted. The multitude of artists
painting on the walls marched to Cohenas beat. He called the shots and had the
respect of his artistic community. That it was he who chose the works that are worthy
of VARA protection in this litigation speaks volumes to their recognized stature.
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But there is so much more. All of the plaintiffs had also achieved artistic
recognition outside of 5Pointz. And in their Folios they collectively presented over
a thousand exhibits in support of their claims that their works at 5Pointz had achieved
recognized stature. The Folios covered the highlights of their careers, as well as
evidence of the placement of their works at 5Pointz in films, television, newspaper
articles, blogs, and online videos, in addition to social media buzz.
And plaintiffsa highly qualified expert, Vara, provided detailed findings as to
the skill and craftsmanship of each of the 49 works, the importance of 5Pointz as a
mecca for aerosol art, the academic and professional interest of the art world in the
works, and her professional opinion that they were all of recognized stature. The
Court finds Vara highly credible and affords great weight to her testimony, although,
as explained infra, it finds that four of the 49 works do not qualify as having achieved
Defendantsa expert Thompsonas testimony had two fatal flaws: First, she used
an unduly restrictive interpretation of recognized stature that was more akin to a
masterpiece standard. Second, she relied heavily on her inability to find the works on
social media or in academic databases; but, as effectively drawn out by plaintiffsa
counsel on cross-examination, her search methodology was unduly restrictive and
almost designed to avoid finding results. Tellingly, her searches did not even uncover
many of plaintiffsa social media exhibits, demonstrating the weakness of her
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approach. Her final conclusion that none of the works had achieved recognized
stature defies credibility. If not a single one of these works meet the recognized
stature standard, it is hard to imagine works that would, short of a Caravaggio or
1. Recognized Stature of Individual Artworks
The Court now turns to making the requisite individualized findings as to each
of the 49 works:
a. The Long-Standing Works
The Court finds that 37 works on long-standing walls all achieved recognized
stature by virtue of their selection by Cohen for these highly coveted spaces, as
reinforced by the supportive evidence in the plaintiffsa Folios and Varaas compelling
expert testimony as to their artistic merit and embrace by the artistic community. They
Jonathan Cohenas Eleanor RIP, 7-Angle Time Lapse, Patience, Character,
Clown with Bulbs, Meres Outdoor Wildstyle, and Inside Wildstyle
Sandra Fabaraas Green Mother Earth
Luis Lamboyas Blue Jay Wall, Inside 4th Floor, World Traveler, Logo for
Clothing Brand aka Monopoly Man, and Electric Fish
Esteban Del Valleas Beauty and the Beast
Christian Cortesas Skulls Cluster, Jackson Avenue Skulls, Up High Blue Skulls,
and Up High Orange Skulls
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Carlos Gameas Geisha, Marilyn, Red, Denim Girl, and Black and White
James Roccoas Bull Face, Lord Paz, and Face on Jackson
Steven Lewas Crazy Monsters
Nicholai Khanas Dos Equis Man
James Cochranas Subway Rider
Luis Gomezas Inside King Kong
Richard Milleras Monster I
Jonathan Cohen and Maria Castilloas Love Girl and Burner
Jonathan Cohen and Akiko Miyakamias Underwater Fantasy
William Tramontozzi, Jr. and James Roccoas Jimi Hendrix Tribute
Akiko Miyakami and Carlos Gameas Japanese Fantasy
Bienbenido Guerra and Carlo Nievaas Return of New York
Jonathan Cohen, Luis Lamboy, and Thomas Luceroas Angry Orchard
b. Other Works
Ten works on the walls were of recent origin; two were not on walls at all. For
these 12 works, the Court aadopt[s] in wholea the jurorsa findings. Ragin,6 F.3d at
907. As representatives of the community and a across-section of society,a Carter,
861 F.Supp. at 325, their input as an advisory jury was of value to the Court,
aparticularly . . .in cases [such as this one] involving community-based standards.a
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NAACP v. Acusport Corp., 226 F. Supp. 2d at 398.
The jury found recognized stature for Rodrigo Henter de Rezendeas Fighting
Tree, Thomas Luceroas Black Creature, Akiko Miyakamias Manga Koi, Francisco
Fernandezas Dream of Oil, Nicholai Khanas Orange Clockwork, Kenji
Takabayashias Starry Night, Richard Milleras Monster II, and Jonathan Cohen and
Akiko Miyakamias Save 5Pointz. These eight works garnered third party attention,
social media presence, and/or promises from Cohen that they would be long-standing.
The jury did not find recognized stature for Jonathan Cohenas Drunken Bulbs,
Akiko Miyakamias Japanese Irish Girl, Carlos Gameas Faces on Hut, and Jonathan
Cohen and Rodrigo Henter de Rezendeas Halloween Pumpkins.
Drunken Bulbs and Japanese Irish Girl were gifts to the Shannon Pot Bar.15
They were not part of the curated 5Pointz collection. Furthermore, neither attracted
significant third-party attention or social media buzz during their short life spans.
Faces on Hut was not on a 5Pointz wall; it was on a tin shack near the loading
dock. As its creator, Carlos Game testified: a[N]obody wanted to paint on it because
it was a tin shack, you know, and it was rusted out . . . .a Tr. at 794:12-13. Game also
did not adduce any social media coverage or commentary regarding the work.
Halloween Pumpkins was created in very late October 2013, less than a month
Though unclear from the testimony of Miyakami and Cohen, this bar
appears to have been on the 5Pointz site.
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before the whitewash, and did not achieve any third party recognition. Moreover,
because it was Halloween-themed, it was unlikely to have survived the holiday
In sum, the Court finds 45 of the 49 works achieved recognized stature.
Drunken Bulbs, Japanese Irish Girl, Faces on Hut, and Halloween Pumpkins did not.
C. Mutilation and Prejudice to Honor or Reputation
As noted, even if a work is not of arecognized stature,a VARA also protects
works from aintentional distortion, mutilation, or other modification . . . [that] would
be prejudicial to [the artistas] honor or reputation.a 17 U.S.C. ASS 106A(a)(3)(A). a[I]n
determining whether aintentional distortion, mutilation, or modificationa of [a] Work
would be aprejudicial to [plaintiffsa] honor or reputation,a [a court should] consider
whether such alteration would cause injury or damage to plaintiffsa good name, public
esteem, or reputation in the artistic community.a Carter I, 861 F. Supp. at 323.
This concept is inherently murky. Carter I held that an artistas honor or
reputation may be harmed if the artwork apresent[ed] to viewers an artistic vision
materially different from that intended by [the artist].a Id. In Massachusetts Museum
of Contemporary Art Foundation, Inc. v. Buchel, 593 F.3d 38 (1st Cir. 2010), the
circuit court held that changes made to an unfinished art installation by a museum
against the artistas wishes were sufficient to raise a question of fact as to whether the
artistas honor or reputation were injured. The court focused on evidence that
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newspapers covering the exhibit after the changes had a negative opinion of the
Here, the question is academic in respect to the 45 works of recognized stature
since the Court is not awarding any actual damages, as explained infra, and only one
statutory damages award may be awarded per artwork afor all infringements involved
in the action.a 17 U.S.C. ASS 504(c)(1). Thus, whether defendants are additionally liable
under this second prong is not of any practical consequence.
Of the remaining four, Japanese Irish Girl was destroyed and therefore not
adistorted, mutilated, or otherwise modified.a Faces on Hut was not destroyed until
the demolition of the building and apparently survived the whitewash. Therefore, it
too was not adistorted, mutilated, or otherwise modified.a
Drunken Bulbs was only partially whitewashed; the outlines of the bulbs are
dimly visible underneath the white paint. However, these vague outlines are
unrecognizable as Cohenas original work. Nobody looking at the work would know
that it was his. Therefore, the Court holds this distortion did not prejudice his honor
Halloween Pumpkins was almost entirely covered in black paint, but Cohenas
awild stylea contribution to the painting was apparently left untouched. However,
Cohen testified that he was able to recover this portion of the work, and once the
piece was removed, the final result was a black wall; the original artwork was not
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visible at all under the black paint, except for one purple cloud at the top of the wall,
a minor detail in the painting. Therefore, the Court holds this distortion also did not
prejudice the artistsa honor or reputation.
Having determined that the defendants have violated plaintiffsa rights by
intentionally destroying their works of arecognized stature,a the Court now turns to
A. Actual Damages
As for actual damages,16 the parties presented dueling experts as to the
valuation of the destroyed works. Plaintiffsa expert, Elizabeth Littlejohn, testified that
the works were worth from $50,000 to $80,000 per artwork. She arrived at this
number through a complicated formula that began with the sale price of a Banksy17
piece and awarded each artwork a percentage of that value based on the artistas
In addition to actual damages, 17 U.S.C. ASS 504(a)(1) awards aany
additional profits of the infringera to the winning plaintiff. However, while the
plaintiffs established that Wolkoff profited indirectly from the destruction of their
artwork by building a profitable luxury condominium, they provided no evidence
to establish the precise amount of these profits. Nor have plaintiffs suggested a fair
way to apportion the luxury condominiumas profits between those caused by the
legal development of the site as a business venture and the illegal destruction of
the artwork to clear the site for construction. Therefore, the Court finds the
plaintiffs have not met their burden to establish a basis to award profits. The gain
realized by Wolkoff and his companies is best addressed in calculating an award
under the statutory damages factors, see infra.
Banksy is widely considered the worldas most prominent aerosol artist.
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reputation, the merit of the work, and other factors.
The Court finds this methodology flawed. First, it does not account for the
removal costs of the works, which plaintiffsa own removal expert, Alden, testified
could run in the hundreds of thousands of dollars. Second, there is no evidence that
these artists have ever achieved a fraction of Banksyas sales history; most testified
that they had never sold a work for more than a few thousand dollars. Third,
Littlejohnas method did not account for the unique problems in selling artwork that
is the size of a wall of a building.
The Court finds defendantsa appraisal expert, Christopher Gaillard, credible.
Gaillard testified that because of the unique challenges and costs of selling those
artworks at 5Pointz which were the size of a building wall, they did not have a
provable market value. The Court agrees and holds that plaintiffs failed to establish
a reliable market value for their works.
Therefore, the Court does not award actual damages.18
Plaintiffs contend that they are entitled to damages for emotional distress.
Under traditional copyright law, plaintiffs cannot recover such damages. See
Garcia v. Google, Inc., 786 F.3d 733, 745 (9th Cir. 2015) (a[A]uthors cannot seek
emotional damages under the Copyright Act, because such damages are unrelated
to the value and marketability of their works.a); Kelley v. Universal Music Group,
2016 WL 5720766, at *2 (S.D.N.Y. Sept. 29, 2016) (aBecause emotional distress
damages are not compensable under the Copyright Act, this claim must also be
dismissed.a). Since VARA provides damages under athe same standards that the
courts presently usea under traditional copyright law, H.R. Rep. No. 101-514, at
21-22 (1990), emotional damages are not recoverable.
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B. Statutory Damages
The Copyright Act affords the trial court awide discretion . . . in setting the
amount of statutory damages.a Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807
F.2d 1110, 1116 (2d Cir. 1986). Statutory damages are anot fixed or readily
calculable from a fixed formula.a Feltner v. Columbia Pictures Television, Inc., 523
U.S. 340, 352-53 (1998) (citation omitted). aEven for uninjurious and unprofitable
invasions of copyright the court may, if it deems it just, impose a liability within
statutory limits to sanction and vindicate the statutory policy.a F.W. Woolworth Co.
v. Contemporary Arts, 344 U.S. 228, 233 (1952). There need not be a correlation
between statutory damages and actual damages. Psihoyos v. John Wiley & Sons, Inc.,
748 F.3d 120, 127 (2d Cir. 2014). aTo suggest otherwise is to ignore the various other
factors a court may consider and the purposes of statutory damages in the willful
infringement context.a Id. aStatutory damages exist in part because of the difficulties
in provingaand providing compensation foraactual harm in copyright infringement
actions.a Lowryas Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d 455, 460 (D.
As such, statutory damages are particularly appropriate awhen no actual
damages are proven or they are difficult to calculate.a Warner Bros. Inc. v. Dae Rim
Trading, Inc., 877 F.2d 1120, 1126 (2d Cir. 1989). They are anot meant to be merely
compensatory or restitutionary. The statutory award is also meant ato discourage
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wrongful conduct.aa Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 113 (2d Cir.
2001) (rejecting defendantas argument that statutory damages award should be
overturned because it abears little relationshipa to actual damages) (citation omitted).
As previously explained, the factfinder may award between $750 and $30,000
per work, unless the infringement was committed willfully; if so, the award may be
as high as $150,000 per work. Review of a statutory damages award made after a
finding of willfulness ais even more deferential than abuse of discretion.a Superior
Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., Inc., 74 F.3d 488, 496 (4th
Cir. 1996) (citing Douglas v. Cunningham, 294 U.S. 207, 210 (1935)). aWithin [the
statutory] limitations the courtas discretion and sense of justice are controlling . . . .a
D.C. Comics Inc. v. Mini Gift Shop, 912 F.2d 29, 34 (2d Cir. 1990) (quoting L.A.
Westermann v. Dispatch Printing Co., 249 U.S. 100, 106 (1919)).
aA copyright holder seeking to prove that a copieras infringement was willful
must show that the infringer ahad knowledge that its conduct represented
infringement or . . . recklessly disregarded the possibility.aa Bryant v. Media Right
Prods., 603 F.3d 135, 143 (2d Cir. 2010) (quoting Twin Peaks Prods., Inc. v. Publans
Intal, Ltd., 996 F.2d 1366, 1382 (2d Cir. 1993)). aThis knowledge may be aactual or
constructive.aa N.A.S. Import, Corp. v. Chenson Enters., Inc., 968 F.2d 250, 252 (2d
Cir. 1992). aIn other words, it need not be proven directly but may be inferred from
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the defendantas conduct.a Id.
The jury found that in each case Wolkoff acted willfully. The Court could not
agree more. Wolkoff knew from the moment the lawsuit was initiated that the artists
were pressing their VARA claims. He admitted as much at trial:
Q: And you were aware that the artists were trying to apply under the
Visual Artists Rights Act?
THE COURT: You heard about VARA at that time?
THE COURT: You have a generalized viewa
A: At that time, yes.
Q: And you had hired Mr. Ebertas law firm at the time; correct?
Q: You had a general counselaan in-house lawyer advising you on
legal matters; correct?
Tr. at 2016:24-2017:22.
As previously explained, under VARA, Wolkoff could have given the plaintiffs
90 daysa notice to allow them the opportunity to salvage their works. And indeed,
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plaintiffsa expert conservator, Alden, convincingly testified that curation techniques
had evolved to the point where removal of works of art from the wall of a building
was feasible and had been done. As an example, she referenced the Berlin Wall, from
which hundreds of works of graffiti on the wall have been preserved and sold,
auctioned, or given as gifts, including five works which were successfully transported
to New York City. Alden also testified that she had personally successfully removed
a mural from a building.
And in respect to the plaintiffsa works at 5Pointz, Alden explained that many
could have been totally or partially removed by the artists, at little cost, because the
works were on asiding or plywood or sheetrocka or they aincorporated doors or
windows from the building [which] could have been easily removed,a Tr. at 1971:231972:4; and many others could be removed by a conservator and contractors. See
Exhibit 1270 (identifying 12 aWorks for Which Artistsa Removal Was Possiblea; 9
aWorks Which Artists Were Able to Partially Remove,a and 28 aWorks Which Could
Only Have Been Removed by Conservator and Contractorsa).19
It would logically seem that if Wolkoff did give the 90 daysa notice and
none of the works were removed by the artists, he would have the burden of
proving which works were removable in order to avoid liability for their
destruction. If that were to have happened, Alden would have been a good witness
for him. However, since the notice was not given, Wolkoff was liable under
VARA for the destruction of all the works of recognized stature.
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But Wolkoff could care less. As he callously testified:
I decidedaI alone decided to hire people to whitewash it in one shot
instead of waiting for three months and them going to do something
irrational again and getting arrested. I will go and end it and whitewash
it. I decided to do that. It was pretty much a spur-of-the-moment thing.
Tr. at 2059:1-6 (emphasis added).
Wolkoffas reference to the artists doing asomething irrational again and getting
arresteda is fanciful and unfounded. Plainly, the evidence does not support the notion
that he cared much for what was best for the artists. After the whitewash, he refused
to let them onto his property to recover what had survived and even attempted to have
them arrested when they tried to do so.
And his claim that he was worried that the plaintiffs may do something reckless
and illegal is also belied by the evidence. The plaintiffs operated within the law in
attempting to protect their works: They sought legal advice, filed a claim with the
Landmark Preservation Commission, sought to generate public pressure to preserve
the site, raised money, and filed this lawsuit. Wolkoffas only justification for his
concern that the plaintiffs may attempt to break the law to preserve their work is that
he heard nonspecific arumblings.a Id. at 2042:5. But he could not identify any
particular source of the rumblings, nor had he ever personally had a problem with the
Q: So this information that you received that the artists could be
emotional is from someone you cannot identify; correct?
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Q: The artists were never violent; correct?
Q: They always followed the law when then were on your property;
Q: You have never had any problems with the artists; right?
A: Absolutely correct.
Tr. at 2047:13-23.
As Cohen confirmed: aI followed the rules from day one. I went by my lawyer
and he did not.a Id. at 1464:2-3.
Wolkoffas recalcitrant behavior was consistent with the manner by which he
testified in court. He was bent on doing it his way, and just as he ignored the artistsa
rights he also ignored the many efforts the Court painstakingly made to try to have
him responsively answer the questions posed to him.
From his testimony, the only logical inference that the Court could draw from
Wolkoffas precipitous conduct as soon as the Court denied the artistsa preliminary
injunction application was that it was an act of pure pique and revenge for the nerve
of the plaintiffs to sue to attempt to prevent the destruction of their art. This was the
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epitome of willfulness.20
It remains for the Court to fix the amount of statutory damages.
2. The Statutory Factors
aWhen determining the amount of statutory damages to award for copyright
infringement, courts consider: (1) the infringeras 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 infringeras
cooperation in providing evidence concerning the value of the infringing material;
and (6) the conduct and attitude of the parties.a Bryant, 603 F.3d at 144.21
Wolkoff rings the bell on each relevant factor.
It may also well be that Wolkoff wanted to strike awhile the iron was hota
and was willing to run the risk of being held liable for substantial statutory
damages rather than to jeopardize his multimillion dollar luxury condo project.
Indeed, with a fully developed record, permanent injunctive relief might have been
available under the literal reading of VARA. Such behavior would be equally
The fifth factor does not fit this case. It is designed for traditional
copyright cases where a defendant is liable for selling infringing material and the
plaintiffas damages proof requires evidence of defendantas sales that can only be
provided by defendant. See Curet-Velazquez v. ACEMLA de Puerto Rico, Inc., 656
F.3d 47, 59 (1st Cir. 2011) (upholding maximum statutory damages award because
defendants adid not provide comprehensive and accurate [accounting] reportsa
showing how they profited by selling plaintiffas work). Here, defendants
destroyed, rather than sold, plaintiffsa works, so this factor is inapplicable, and the
Court will not consider it.
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a. The Infringeras State of Mind
Because Wolkoff acted willfully in destroying the works of art, this factor
weighs in favor of a high statutory damages award. As noted, Wolkoffas two alleged
justifications for the whitewashathat it would be better for the plaintiffs to lose their
works quickly, and that he was concerned the plaintiffs might do something reckless
and illegal in an attempt to save the worksaare implausible.
The whitewash did not end the conflict in one go; the effects lingered for
almost a year. The sloppy, half-hearted nature of the whitewashing left the works
easily visible under thin layers of cheap, white paint, reminding the plaintiffs on a
daily basis what had happened. The mutilated works were visible by millions of
people on the passing 7 train. One plaintiff, Miyakami, said that upon seeing her
characters mutilated in that manner, it afelt like [she] was raped.a Tr. at 1306:24-25.
It is simply untenable that a rational person could view the whitewashing as being in
the best interest of the artists.
b. The Expenses Saved, and Profits Earned, by the Infringer
This factor is not a clean fit for VARA since, unlike a traditional copyright
infringement case, Wolkoff did not sell the plaintiffsa art; hence, there were no direct
profits. However, he indirectly profited when the value of the site increased from $40
million to $200 million as soon as the variance was obtained. Destroying 5Pointz
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allowed Wolkoff to realize this gain. He also charged licensing fees to film at the site
that netted him hundreds of thousands of dollars. Because Wolkoff realized
significant profits by violating VARA, this factor cuts in favor of a high statutory
c. Revenue Lost by the Copyright Holder
While the plaintiffs were never able to place a dollar figure on how the
whitewash of 5Pointz impacted their careers, it often had a negative effect. As
plaintiff Takabayashi testified: aI would actually have clients . . . come by and
observe the work to get an idea of what they would be getting if I was going to
execute a mural on their property . . . . There were possibilitiesathere was business
that I probably lost because of the fact that the artwork was eliminated.a Tr. at
315:23-316:4. And plaintiff Del Valle testified: aIt definitely took away a lot of
opportunities that I would have had. I was consistently getting contacted about
opportunities . . . all coming from me building my career from [5Pointz].a Id. at
Furthermore, as Cohen testified, the salvageable artwork at 5Pointz acould
have adorned a museum, a full wing of a museum. . . . I donat think you guys really
get a full idea of the picture of this building and its property . . . . It was eight stories
tall. We could have filled a wing, if not more, of a museum.a Id. at 1466:18-23.
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The value of 5Pointz to the artistsa careers was significant, and its loss, though
difficult to quantify, precluded future opportunities and acclaim. Therefore, this factor
also supports a significant statutory damages award.
d. The Deterrent Effect on the Infringer and Third Parties
This is perhaps the most important factor in this case. Without a significant
statutory damages award, the preservative goals of VARA cannot be met. If potential
infringers believe that they can violate VARA at will and escape liability because
plaintiffs are not able to provide a reliable financial valuation for their works, VARA
will have no teeth. It will simply be cost-effective for infringers to violate the statute.
This would not further its preservative goals.
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:
Q: Let me ask you a hypothetical question. Letas go back in time.
Q: Would you have done it again?
A: But that was the decision I made. I would make the same decision
today if that happened today.
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 49 of 100 PageID #: 2260
Id. at 2056:2-3.
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. This factor could not cut more strongly in favor of a high statutory damages
e. The Conduct and Attitude of the Parties
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 plaintiffs have conducted themselves with dignity,
maturity, respect, and at all times within the law. Therefore, this factor also cuts
heavily in favor of a high statutory damages award.
3. The Statutory Damages Award
Collectively, all five relevant factors support the maximum award of statutory
damages. Therefore, the Court awards $150,000 for each of the 45 works, for a total
statutory damages award of $6,750,000.
If not for Wolkoffas insolence, these damages would not have been assessed.
If he did not destroy 5Pointz until he received his permits and demolished it 10
months later, the Court would not have found that he had acted willfully. Given the
degree of difficulty in proving actual damages, a modest amount of statutory damages
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would probably have been more in order.22
The shame of it all is that since 5Pointz was a prominent tourist attraction the
public would undoubtedly have thronged to say its goodbyes during those 10 months
and gaze at the formidable works of aerosol art for the last time. It would have been
a wonderful tribute for the artists that they richly deserved.
Judgment will be entered for each individual plaintiff in the following
Estaban Del Valle
Rodrigo Henter de Rezende
Of course, all this could have been easily avoided with a written waiver of
the artistsa VARA rights up front, as ASS 113(d) expressly contemplates.
While ASS 504(c)(1) requires the plaintiffs to elect statutory damages in lieu
of actual damages abefore final judgment is rendered,a the Court will deem that
the plaintiffs have chosen to accept these statutory damages rather than no
damages at all.
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 51 of 100 PageID #: 2262
/S/ Frederic Block
Senior United States District Judge
Brooklyn, New York
February 12, 2018
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 52 of 100 PageID #: 2263
Akiko Miyakami - Japanese Irish Girl
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 53 of 100 PageID #: 2264
Akiko Miyakami - Manga Koi
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 54 of 100 PageID #: 2265
Akiko Miyakami and Carlos Game - Japanese Fantasy
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 55 of 100 PageID #: 2266
Akiko Miyakami and Jonathan Cohen - Save 5Pointz
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 56 of 100 PageID #: 2267
Akiko Miyakami and Jonathan Cohen - Underwater Fantasy
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 57 of 100 PageID #: 2268
Bienbenido Guerra and Carlo Nieva - Return of New York
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 58 of 100 PageID #: 2269
Carlos Game - Black and White 5Pointz Girl
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 59 of 100 PageID #: 2270
Carlos Game - Denim Girl
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 60 of 100 PageID #: 2271
Carlos Game - Faces on Hut
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 61 of 100 PageID #: 2272
Carlos Game - Geisha
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 62 of 100 PageID #: 2273
Carlos Game - Marilyn
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 63 of 100 PageID #: 2274
Carlos Game - Red
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 64 of 100 PageID #: 2275
Christian Cortes - Jackson Avenue Skulls
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 65 of 100 PageID #: 2276
Christian Cortes - Skulls Cluster
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 66 of 100 PageID #: 2277
Christian Cortes - Up High Orange Skulls
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 67 of 100 PageID #: 2278
Christian Cortes - Up High Skulls
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 68 of 100 PageID #: 2279
Esteban Del Valle - Beauty and the Beast
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 69 of 100 PageID #: 2280
Francisco Fernandez - Dream of Oil
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James Cochran - Subway Rider
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 71 of 100 PageID #: 2282
James Rocco - Bull Face
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 72 of 100 PageID #: 2283
James Rocco - Face on Jackson
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James Rocco - Lord Paz
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 74 of 100 PageID #: 2285
Jonathan Cohen - 7-Angle Illusion
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 75 of 100 PageID #: 2286
Jonathan Cohen - Character
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 76 of 100 PageID #: 2287
Jonathan Cohen - Clown with Bulbs
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 77 of 100 PageID #: 2288
Jonathan Cohen - Drunken Bulbs
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 78 of 100 PageID #: 2289
Jonathan Cohen - Eleanor RIP
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 79 of 100 PageID #: 2290
Jonathan Cohen - Inside Wildstyle
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 80 of 100 PageID #: 2291
Jonathan Cohen - Outdoor Wildstyle
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 81 of 100 PageID #: 2292
Jonathan Cohen - Patience
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 82 of 100 PageID #: 2293
Jonathan Cohen and Maria Castillo - Burner and Love Girl
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 83 of 100 PageID #: 2294
Jonathan Cohen and Rodrigo Henter de Rezende - Halloween Pumpkins
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 84 of 100 PageID #: 2295
Jonathan Cohen, Luis Lamboy, and Thomas Lucero - Angry Orchard
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Kenji Takabayashi - Starry Night
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 86 of 100 PageID #: 2297
Luis Gomez - Inside King Kong
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 87 of 100 PageID #: 2298
Luis Lamboy - Blue Jay Wall
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 88 of 100 PageID #: 2299
Luis Lamboy - Electric Fish
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 89 of 100 PageID #: 2300
Luis Lamboy - Inside 4th Floor
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 90 of 100 PageID #: 2301
Luis Lamboy - Clothing Brand aka Monopoly Man
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 91 of 100 PageID #: 2302
Luis Lamboy - World Traveler
Case 1:15-cv-03230-FB-RLM Document 69 Filed 02/12/18 Page 92 of 100 PageID #: 2303
Nicholai Khan - Dos Equis Man
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Nicholai Khan - Orange Clockwork
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Richard Miller - Monsters I
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Richard Miller - Monsters II
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Rodrigo Henter de Rezende - Fighting Tree
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Sandra Fabara - Green Mother Earth
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Steven Lew - Crazy Monsters
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Thomas Lucero - Black Creature
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William Tramontozzi and James Rocco - Jimi Hendrix Tribute