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The 5Pointz Saga is Finally Over

The United States Supreme Court denied developer G&M Realty’s petition to hear its appeal from the decision of the Court of Appeals for the Second Circuit in which the developer was found liable under the Visual Artists Rights Act (VARA) for the whitewashing of certain graffiti art painted onto the developer’s dilapidated buildings slated for demolition.  (See Blog, September 22, 2020)  Instead of allowing the artists to remove their work, G&M whitewashed the artwork before the trial court could issue a ruling on a pending injunction.  The trial court found G&M liable for $6.75 million for destroying the artworks, finding the works to be of “recognized stature” due to their artistic quality, as recognized by the art community and the public at large.  5Pointz had become a destination to view the graffiti art, some of which was permanent while others were on display only temporarily.

G&M appealed to the Court of Appeals for the Second Circuit but lost.  The appellate court upheld the trial court’s decision, finding that the artwork was indeed works of “recognized stature.”  Recognized stature means that “it is one of high quality, status, or caliber that has been acknowledged as such by the relevant community.”

Apparently undaunted, G&M filed a petition for a writ of certiorari to the U.S. Supreme Court, asserting that the term works of “recognized stature” was unconstitutionally vague and thus, denied the developer due process of law by failing to put people on notice of what violates VARA.  For non-Latin speakers (😊), the writ is an order by the U.S. Supreme Court to the lower court to send its record in a case so the U.S. Supreme Court can review it.  When the U.S. Supreme Court denies the writ, it means it will not hear the case, and here, it decided against hearing the 5Pointz case.  The result is that the decision of the trial court and the court of appeals is upheld, and the graffiti artists have their big win while setting precedent for future VARA cases.  It does not mean the road to a remedy for graffiti artists will be easy, but at a minimum, such artists (and property owners) know the standard required to be found to be works of “recognized stature.”

Ramona P. DeSalvo

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