The Second Circuit’s February 2020 holding in Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020) provides not only an excellent means for understanding the operation of the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (2012) (“VARA”), but also offers an intriguing fact pattern replete with deceptive and vindictive behavior on the part of the defendant landlord. See Castillo, 950 F.3d at 162-65. The opinion written by Senior U.S. Circuit Judge Barrington D. Parker affirmed the lower court ruling issued by Judge Frederic Block, Senior Judge for the Eastern District of New York, and cemented a monumental victory for the plaintiff artists. See Castillo, 950 F.3d at 162; Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421 (E.D.N.Y. 2018). 

The litigation centered on the destruction of the “5Pointz” art site in Long Island City. In 2002, real estate developer Gerald Wolkoff, the owner of G&M Realty L.P., and the three other defendant firms (“Wolkoff”), enlisted Jonathan Cohen, a “distinguished aerosol artist,” to turn a series of dilapidated warehouses owned by Wolkoff into an exhibition space for aerosol artists. Castillo, 950 F.3d at 162. With Cohen as curator, the location over the years became known as “5Pointz,” a major center of aerosol art that attracted thousands of visitors, celebrities, and news coverage. Id. 5Pointz embodied a method of “creative destruction” wherein some works achieved permanence while other works were short-lived and painted over. Id. It could also be viewed from afar, including subway passengers of the 7 train. Cohen, 320 F. Supp. 3d at 172. 

In 2013, Wolkoff sought to demolish 5Pointz and replace the site with luxury apartments. Castillo, 950 F.3d at 162. Cohen learned of this impending development and sought to protect the artwork. Id. When Cohen failed to have the site designated as a cultural landmark and also failed to raise enough money to purchase the site, he and other 5Pointz artists (“Plaintiffs”) sued under VARA to prevent destruction of the site. Id. at 162-63. 

VARA is a federal statute that “grants artists certain ‘moral rights’ in their work[s].” Castillo, 950 F.3d at 163 (quoting 17 U.S.C. § 106A (2012)). The right of integrity provides that visual arts authors may “prevent any destruction of a work of recognized stature,” and any intentional or grossly negligent destruction is a violation thereof. Id. at 165 (quoting 17 U.S.C. § 106A (2012)). Violations may be remedied by either actual damages or statutory damages, which the statute “fixes . . . between $750 and $30,000 per work but authorizes damages of up to $150,000 per work if a litigant proves that a violation was ‘willful.’’’ Id. at 164 (quoting 17 U.S.C. § 504 (2012)). VARA specifically addresses artwork incorporated into buildings. For works that cannot be removed without destruction, an artist’s rights may be waived only if the artist, “consented to the installation of the work in the building . . . in a written instrument” signed by the artist and building owner providing that the work may be destroyed via removal. Id. at 165 (quoting 17 § U.S.C. 113 (2012)). But for works that may be removed without destruction, VARA requires that the building owner make a “diligent, good-faith attempt without success to notify” the artist of the owner’s intent, or, to provide a successful 90-day written notice wherein the artist failed to remove the work. Id. at 165-66 (quoting 17 § U.S.C. 113 (2012)). 

The district court granted Plaintiffs’ temporary restraining order but their application for a preliminary injunction was denied on November 12, 2013. Id. at 163. Judge Block indicated that a written opinion would soon follow, but Wolkoff took action of his own and banned all artists from 5Pointz that night, preventing recovery of any artwork. Id. Later that week, he provided workmen with the cheapest paint available and personally supervised the whitewashing of 5Pointz. Id. Wolkoff urged them to “keep painting” and “paint everything.” Id. at 172. 

Nine additional artists sued Wolkoff and the two lawsuits were consolidated for a trial that focused on two questions: “whether the artwork had achieved recognized stature and, if it had, the value of the art Wolkoff destroyed.” Id. at 163. After a three-week trial that included testimony from 29 witnesses and a broad array of evidence, the district court held that 45 of the 49 works in 5Pointz had achieved recognized stature and were thus protected under VARA. Id. at 163-64. The court further held that Wolkoff willfully violated VARA and awarded plaintiffs the maximum statutory damages of $150,000 per work, totaling $6.75 million. Id.  

Wolkoff appealed to the Second Circuit on numerous grounds. Wolkoff argued that the works at 5Poinz were “temporary” rather than “permanent” and thus could not achieve recognized stature. Id. at 167. Wolkoff also argued that recognized stature “must be assessed at the time of a work’s destruction, not at the time of trial.” Id. at 169. Wolkoff specifically objected to the district court’s crediting of the testimony of plaintiffs’ expert, Renee Vara, who attested to the recognized stature of 5Pointz only on the basis of images viewed after destruction. Id. Finally, Wolkoff also objected to the award of maximum statutory damages. Id. at 170-71. 

However, the Second Circuit affirmed the district court’s ruling across the board. See id. at 162. It first refuted the argument that a work’s temporariness precluded a finding of “recognized stature,” noting that it lacked textual support: there are no temporal categories in the statute, and Congress provided a “highly specific definition of visual art,” suggesting the minimum “fixed” requirement, which can be satisfied in minutes, is the sole requirement. Id. at 167. The Second Circuit also pointed to examples where temporary artwork had achieved recognized stature, such as the 2005 work “The Gates” in Central Park (consisting of 7,503 orange draped gates) and the recognized works of street artist Bansky (whose Girl with a Balloon famously self-destructed after selling for $1.4 million — and yet “the temporary quality of this work has only added to its recognition”). Id. at 167-68. 

The Second Circuit further affirmed the district court’s determination that 45 of the 49 works achieved “recognized stature,” finding no clear error in that finding of fact. See id. at 170. It held that “a work is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.” Id. at 166. The Second Circuit noted that the “relevant community will typically be the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts.” Id. Here, the “extensive lay testimony and documentary evidence” including “much expert testimony” provided vast evidentiary support for the recognized stature of the 5Pointz works. Id. at 170. The Second Circuit rejected Wolkoff’s argument that the district court “erroneously focused on the stature of the 5Pointz site,” holding that the district court committed no such error, but also holding that the site’s status was indeed relevant to the recognized stature of the individual works. Id. 

The Second Circuit also rejected Wolkoff’s argument that plaintiffs’ expert’s testimony was invalid due to her after-the-fact evaluation of 5Pointz on the basis of visual images. It stated in a short paragraph that they were “[not] persuaded that the district court evaluated the works’ recognition at the time of trial, since it explicitly stated that the ‘focus of [its] decision was the recognition the works achieved prior to the whitewash.’” Id. at 169. The Second Circuit then held that, “In any event, the quality of a work, assessed by an expert after it has been destroyed, can be probative of its pre-description quality, status or caliber.” Id. 

Regarding damages, the Second Circuit found no clear error as to the district court’s finding that Wolkoff willfully violated VARA. It emphasized that Wolkoff, by his own admission, was aware of the artists’ VARA claims and knowingly violated VARA’s 90-day notice provisions because he wanted “to hire people to whitewash[] it in one shot instead of waiting for three months.” Id. at 170-71. The Second Circuit also emphasized Wolkoff’s testimony that he “would make the same decision today.” Id. at 172. Finally, itt affirmed the awarding of maximum statutory damages, finding no abuse of discretion and affirming the district court’s holding that Wolkoff implicated all six factors favoring an award of statutory damages. Id. at 171-72. 

Castillo v. G&M Realty establishes that temporary works of art, including aerosol art, may achieve “recognized stature” and qualify for VARA protections. Castillo’s holdings regarding the nature and means of proving recognized stature also establish binding Second Circuit precedent. But perhaps a future case with a different fact pattern — and an absence of willful violations of VARA — could lead a court to apply a stricter standard when crediting an expert evaluation of a work post-destruction. Castillo also incentivizes landlords to properly craft transactions up-front via a signed written contract to avoid liability with regard to irremovable artistic works. Finally, the case features a textbook application of VARA’s deterrence aim, demonstrating that landlords who willfully violate VARA and its notice provisions will be held liable for the destruction of artworks of recognized stature. Such actions do not require the truly outrageous behavior of Wolkoff but also include willful disregard of the notice provisions. The range of damages could vary — but here, the maximum statutory damages certainly seemed appropriate. The artists were rightly compensated for the violation of their rights by Wolkoff’s willful and vindictive act of sloppy whitewashing, and both Wolkoff and other landlords are disincentivized from taking similar actions in the future. Castillo demonstrates a proper application and fulfillment of VARA’s protections. However future cases may provoke more difficult questions on VARA’s application.

Fordham IP Institute