5Pointz Ruling Upheld (UPDATED)

The Second Circuit has upheld the $6.75 million judgment in favor of the artists in the 5Pointz lawsuit. Eileen Kinsella has the story here. (The artnet headline calls the decision "stunning," but an affirmance of a district court decision is never that stunning. Although this one may have surprised some people.) The decision is here.

The part of the decision getting the most attention -- part of what the Court calls the "crux of the parties' dispute" -- is that temporary works of art are eligible for VARA protection. That seems clearly right. The Court mentions Christo's "The Gates" for example.

I've always been more interested in the damages aspect of the case. The district court found it could not quantify the damages, so the $6.75 million was all statutory damages. The Second Circuit now has ruled that that was appropriate -- that in a case where actual damages could not be established, a nearly $7 million statutory damages award was justified. Now, it may be the facts of this case were so unique and so egregious that it won't have a wider impact -- basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, "without any genuine business need" to do so, "simply, as the district court found, an 'act of pure pique and revenge.'" But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can't be proven could be a big deal.

UPDATE: Some reactions. First, Derek Fincham:

"I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way."

And Sergio Muñoz Sarmiento:

"Big news? I think so. And I think developers, in fact, any commissioning party commissioning an art work by an artist should be processing right about now."

"Hackers posing as a veteran London art dealer tricked a Dutch museum buying a John Constable painting into paying $3.1 million into a fraudulent bank account."

"Scamming their way into the middle of months of negotiating emails between Simon C. Dickinson Ltd. and Rijksmuseum Twenthe, the imposters persuaded the museum to transfer the funds to a Hong Kong account."

"This case is a classic example of someone who held himself out to be a dealer trying to exploit an artist at the outset of his career. Mr. Fordjour has always acted in good faith with respect to Mr. Blumenthal and fully expects to prevail in this lawsuit."

Dealer Robert Blumenthal is suing artist Derek Fordjour over a deal he claims they made in 2014 to buy 20 paintings for $20,000. Not $20,000 each -- $20,000 in total. He got 13 of them and is suing for the other seven. Eileen Kinsella has the story here.

"While this lawsuit might not be quite as egregiously bad as some of Liebowitz's other lawsuits, it's still pretty bananas."

Mike Masnick: Copyright Troll Lawsuit Over Duct Taped Banana Picture.

Gagosian-Tananbaum Suit Settled

This is the one with the ouroboros, and where the Judge had said: "Next year, Mr. Tananbaum will go buy more art from Mr. Gagosian. I’m the only one getting agita." Which, based on the joint statement issued by Gagosian and Koons ("Mr. Tananbaum is a passionate collector, and we look forward to our continuing relationship"), appears to be correct (though I can't speak to anybody's agita levels but my own). Story here.