Wednesday, November 20, 2013

5Pointz Opinion (UPDATED 2X)

The Judge issued his decision -- a really interesting one -- in the 5Pointz VARA case today.  I'll post a link when I find one. [UPDATE:  Here we go.]

He begins by noting that "[t]his marks the first occasion that a court has had to determine whether the work of [a graffiti] artist -- given its ephemeral nature -- is worthy of any protection under the law" (p. 2).

He ends up answering yes ... in theory ... VARA "makes no distinction between temporary and permanent works of visual art" (p. 25), it "protects even temporary works from destruction" (p. 26).  He left open the question whether the works qualified as works of "recognized stature" for purposes of VARA protection (a question "best left for a fuller exploration of the merits after the case has been properly prepared for trial, rather than at the preliminary injunction stage," p. 24).

But he still denied the injunction, because the artists couldn't show irreparable harm:  "plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings":

"[P]aintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace. Here, the works were painted for free, but surely the plaintiffs would gladly have accepted money from the defendants to acquire their works" (p. 25).

He adds that "the ineluctable factor which precludes ... injunctive relief" was "the transient nature of the plaintiffs' works."  They "always knew that the buildings were coming down."  "Particularly disturbing is that many of the paintings were created as recently as this past September, just weeks after the City Planning Commission gave final approval to the defendants' building plans.  In a very real sense, plaintiffs' have created their own hardships" (p. 26).

So the transient nature of the works precludes injunctive relief ... but it doesn't preclude "potentially significant monetary damages if it is ultimately determined after trial that the plaintiffs' works were of 'recognized stature'" (p. 27).  And here's where it gets really interesting.

He closes by noting that the City Planning Commission required 3,300 square feet of the exterior of the new buildings to be made available for art.  But the defendants, he says, "can do more":

"They can make much more space available, and give written permission to Cohen to continue to be the curator so that he may establish a large, permanent home for quality work by him and his acclaimed aerosol artists.  For sure, the Court would look kindly on such largesse when it might be required to consider the issue of monetary damages; and 5Pointz, as reincarnated, would live" (p. 27).

Is it me, or do you get the feeling he's trying to tell them something?

UPDATE:  Foley Hoag on the moral of the story:  "[T]his case is a cautionary tale for artists and property owners alike. ... Given a slightly different fact pattern, the artists might have successfully blocked demolition.  If an artist and a property owner contemplate a piece of artwork that will be intrinsically connected to a building, it is in everyone’s best interest to actively address that fact before the art is created.  The parties could agree to a VARA waiver, find a way for the art to be detachable, or make the art a 'work for hire,' in which case the artist would receive compensation, but VARA protections would not attach.  If the parties can’t agree on one of those options, it might be best for the artist to find a different canvas, and for the owner to find a different artist.  Otherwise, artists risk having to combat unexpected attempts to demolish their work, and property owners risk having their rights in their property limited for the duration of the artist’s life."

UPDATE 2:  Sergio Muñoz Sarmiento comments here, fixating on fixation.