A Coat of White Paint

by Tanner D’Ortenzio

There once was an old, dilapidated factory nestled cozily in Queens, New York. Constructed in the waning years of the U.S industrial revolution, this factory served its role in expanding the industrial might of the United States by working in the exciting field of water meter manufacturing. In time the Neptune Meter Factory[1] underwent a drastic metamorphosis, changing from a damp water meter factory; to a world-renowned sanctuary for aerosol artists and daring creatives alike. Eerily similar to the life of a butterfly, the life of 5Pointz was sadly short lived. Jerry Wolkoff, the owner of the 5Pointz site and prominent New York property developer decided that the creation of luxury condos outweighed the cultural and artistic impact the 5Pointz site maintained.[2] This decision triggered an avalanche of backlash ranging from legal ramifications to cultural criticism from across the world. Additionally, this decision infringed on the moral rights of the artists, with those moral rights being a sect of copyright law[3]. Generally speaking, moral rights give the artists the right to maintain the integrity and reputation of their work.[4] Quite arguably the largest of these ramifications came from the decision made by the New York Federal Court Judge Frederic Block in the case of Cohen v. G&M Realty[5]. Although the context surrounding this decision led to many heartbreaks, the court’s decision set the precedent for upholding artist’s VARA rights.

The saga begins in the early 1970’s with Jerry Wolkoff’s purchase of the Neptune Meter Factory with a plan to eventually turn the facility into a money-making enterprise. This plan faded away when Wolkoff began leasing the derelict factory to artists in the 1990’s, sowing the seeds that would eventually morph this factory into an artist’s Garden of Eden. Known as the “Phun Phactory” in the 1990’s, the site gained the name 5Pointz after Jonathan Cohen began his endeavour of creating a bustling hub for aerosol art[6]. The name 5Pointz comes from the 5 boroughs of New York City coming together in one location for the purpose of creating.

Some see the art created at 5Pointz and other similar locations as being purely graffiti, or that the art on display there was less art and more so vandalism. Cohen argues that, “Graffiti is a label for writers who vandalize. Aerosol art takes hours and days. It’s a form of calligraphy”[7] 5Pointz was not just some place where vandals or gang members could tag whatever their hearts desired, it had rules and a structure. Described as the “United Nations of Graffiti” Cohen’s dream was to create a place where people can come together and paint in peace. “”Whether you’re an accomplished artist or you’ve never touched a can before, or if you simply want to take some great pictures, these walls are your canvas.”[8] This idea spread like wildfire across New York City, famous for its zero tolerance policy on graffiti.[9] Hip-Hop artists such as Doug E. Fresh, Mobb Deep, Boot Camp Clik, and many more use the 5Pointz industrial complex as a site to film music videos. More recently the 2013 film Now You See Me showcased the film’s four protagonists atop the 5Pointz facility bracing for the magic filled climax of the movie. [10] The effects of 5Pointz reached even further than the United States bringing in artists and tourists from across the world to enjoy the fruits of Jonathan Cohen’s labor. Under Cohen’s vision, 5Points flourished; showcasing mural after mural, masterpiece after masterpiece.

All of this changed in 2013 when Jerry Wolkoff decided to grough with his 40 year developmental plans. On November 19th, 2013 painters paid by the Wolkoff family crept into the industrial complex concealed by the cover of night. That night they defaced every piece of art at 5Pointz, covering every inch in a coat of white paint.[11] While the Wolkoff family was within their legal right to paint over the artist’s work, white-washing the entire complex is in direct violation of their rights as artists, citing their VARA rights.

The Visual Artists Rights Act (VARA) passed in 1990 was the United States first piece of legislation that provided protection for artists moral rights. These include the right to:

  • Claim authorship
  • Prevent the use of one’s name on any work the author did not create
  • Prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation
  • Prevent any intentional distortion, mutilation, or modification that would prejudice the author’s honor or reputation
  • Prevent the destruction of a work of art if it is of “recognized stature”[12]

The courts stated how this case “marks the first occasion that a court has had to determine whether the work of an exterior aerosol artist—given its general ephemeral nature—is worthy of any protection under the law” [13] VARA rights apply to works that have 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” [14] and that the author consented to the installation of the works.[15] VARA rights also state that if the owner of the complex wishes to modify the art in any way he must make a diligent, good natured attempt to notify the artists of the change and provide a written notice that gives the artists 90 days to remove their artwork.[16] The New York federal court found that while Cohen and his fellow artists knew of Wolkoff’s plan to develop the site, he still infringed on the Artists VARA rights.[17] Although, not all 5Pointz works of art were found to be protected. But in the end the courts ruled that 44 works of aerosol art were in fact destroyed unlawfully. Forcing Wolkoff to pay $6.75 million USD to the 21 aerosol artists they found to be protected.[18]

This victory for VARA rights is world-shaking. The case of Cohen v. G&M Realty was the first in U.S. history to recognize aerosol art as being protected under VARA rights. This gives other aerosol artists the freedom to create masterpieces across other U.S. cities without fear of their work being destroyed. Additionally this court case is yet another in the United States gradual shift to accepting moral rights as law. While the shift will be tough for some, this gradual change will bring out more and more works of art for the American people to enjoy. Courts across the country will start to see art as being more than just the work of an individual, but rather as a piece of that artist.

[1] Mitch Waxman, When the 5Pointz Warehouse Was Home to Neptune Meter, Brownstoner, 2013

[2]  Sarah Bayliss, ART/ARCHITECTURE; Museum With (Only) Walls, New York Times, 2004

[3] 17 U.S.C. § 106A(e)(2)

[4] Id.

[5] Cohen v. G & M Realty L.P., 988 F. Supp. 2d

212, 214 (E.D.N.Y. 2013)

[6]   Sarah Bayliss, ART/ARCHITECTURE; Museum With (Only) Walls, New York Times, 2004

[7] Id.

[8] Scott Manson, New York’s ‘United Nations of graffiti’, The Guardian, 2011

[9] NY § 10-117

[10] Sara Frazier & Jeff Richardson, 5Pointz Building, Graffiti Mecca in Queens, Painted Over During the Night, NBC New York, 2013

[11] Cara Buckley & Marc Santora, Night Falls, and 5Pointz, a Graffiti Mecca, Is Whited Out in Queens, New York Times, 2013

[12] 17 U.S.C. § 106A(e)(2)

[13]  Cohen v. G & M Realty L.P., 988 F. Supp. 2d

212, 214 (E.D.N.Y. 2013)

[14]  17 U.S.C. § 106A(e)(2)

[15] Id.

[16] Id.

[17] Cohen v. G & M Realty L.P., 988 F. Supp. 2d

212, 214 (E.D.N.Y. 2013)

[18] Id.