New York Law Journal Publishes Article by Thomas Kearns on 5Pointz Litigation Outcome

New York Law Journal (subscription required) recently published an article co-authored by Olshan Real Estate partner Thomas Kearns entitled “5Pointz Artists Awarded $6.75M in Damages.” The article details the outcome of the lengthy 5Pointz litigation, wherein the U.S. District Court of the Eastern District of New York awarded $6.75M in statutory damages to the plaintiffs, comprised of 21 aerosol artists whose work at the 5Pointz site in Long Island City, Queens, was whitewashed and subsequently destroyed when the site’s owner ordered the building’s demolition. After the court denied a 2013 request for a preliminary injunction that would preserve the artwork through the trial, it still had to determine which of the 49 pieces of artwork meet the criterion of “recognized stature” needed to invoke protection under the Visual Artists Rights Act of 1990 (VARA). “VARA protects visual artists against the intentional destruction, mutilation, or other modification of visual art of ‘recognized stature,’” Mr. Kearns explains, but this designation is still ambiguous: “It was telling that the court pointed to the lack of ‘significant third-party attention or social media buzz’ and ‘social media coverage’ as the sole basis for dismissing certain works as lacking ‘recognized stature.’”  Furthermore, the court found that the most significant factor in awarding statutory damages to the plaintiffs was the defendant’s unruly behavior both in and out of the courtroom and it stated that if not for this misconduct, “a modest amount of statutory damages would probably have been more in order.” One lesson to be learned from the outcome of the trial, Mr. Kearns concludes, is that, “If a building owner finds itself in a position where it must remove art protected by VARA and no written VARA waiver was obtained, the owner should proceed cautiously and in good faith in the destruction or removal of the art. For example, notice should be provided to the artist of the landlord’s intention to remove the art, ample time should be provided for its removal (no less than 90 days), and other accommodations should be made to facilitate the art’s preservation and removal.”         

This is Mr. Kearns’ third published article on The Visual Rights Act (VARA). The first provided a primer on the law and its legal implications for property owners and can be found here, while the second addressed VARA from the artist’s perspective and can be found here.