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Artists Won the 5Pointz Case, But the Decision Was Terrible for Art

5Pointz, before the whitewash.

Here’s a tale of two real-estate men, each of whom owns an industrial building in a rundown part of New York. The first decides to convert the interiors to artist studios and cede the exterior walls to the graffiti artists who are tagging it anyway. He appoints a curator, sets up some ground rules, and makes it clear that, so long as the building stands, it can serve as a large-scale urban canvas. To his mild surprise, he spends decades as a patron of graffiti art.

The other developer decides to tear down his old factory and put up luxury condos instead. He whitewashes the graffiti that has spread across his property, depriving the artists of the chance to preserve their work, even in photographs. He immediately becomes the object of graffiti artists’ scorn.

Both developers are, of course, the same man, Jerry Wolkoff, who bought the 19th-century Neptune Meter factory in Long Island City in the early 1970s. Manufacturing had abandoned the derelict waterfront, and the idea that deluxe apartment buildings would one day sprout there seemed fantastical at best. Four decades later, in 2013, Wolkoff decided the time had come to reap a return on his investment. By then, 5Pointz, as it had come to be known, was an aerosol-art mecca, the backdrop to a thousand selfies, and a famous repository for a form that requires an architectural scale. A group of artists sued in federal court, claiming that Wolkoff had violated the Visual Artists Rights Act (VARA), which protects art of “recognized stature” from destruction or alteration. A jury agreed, and in a decision being hailed as a victory for art over greed, Judge Frederic Block imposed a $150,000 fine for each of the 45 works he deemed worthy of protection, a total of $6.7 million.

In an indignant and reproachful decision, the judge found that not only had Wolkoff illegally destroyed valuable art, he had aggravated the violation with his “insolence” and willful haste.

“Since 5Pointz was a prominent tourist attraction the public would undoubtedly have thronged to say its goodbyes during those 10 months and gaze at the formidable works of aerosol art for the last time,” Block wrote. “It would have been a wonderful tribute for the artists that they richly deserved.” In other words, Wolkoff was barred from demolishing his property at all, but if he was going to defy the law, at least he could have done it more slowly.

The deeper question is whether applying VARA to 5Pointz makes moral sense in the first place. The law, at least in Block’s interpretation, preempts local landmarks statutes and building codes — and defies common sense — by preventing landlords from demolishing their own buildings. That’s crazy, but not as unfair as demonizing Wolkoff for welcoming graffiti artists onto his premises at a time when VARA did not exist. If it had, his lawyer might have advised him to chase them away. (A judge might also have forced the MTA to preserve its graffiti-bedecked subway cars.)

If, once they got started, the taggers at 5Pointz had had to scale fences and fight for turf, or if they’d sprayed over each other’s half-completed work, those walls might never have acquired sufficient stature for Block’s standard to kick in. Instead, at a time when graffiti was seen as the enemy of a civilized city, Wolkoff gave it a haven. The artists who benefited have devoted a lot of energy to demonizing the wrong guy.

That graffiti Eden could only ever have been temporary, making a showdown inevitable. The 5Pointz case produced a strange role reversal. Graffiti artists, who started out as apostles of irreverence and improvisation, were now arguing for preservation and permanence. And a real-estate developer had reason to regret his former friendliness to art. Sure, he should have held off with the whitewash, expressed himself with less “insolence,” and given the artists time to document their work before it vanished. But in retrospect, the only sure way to prevent this conflict was for Wolkoff to have kept his building as a monochrome block. Then New York would have gone 40 years with a little less color and a little less life, but at least nobody would have gotten upset.

Artists Won at 5Pointz But the Decision Was Terrible for Art