Cohen v. G&M Realty L.P.

Facts

'VARA amended existing copyright law to add protections for two 'moral rights' of artists: the rights of attribution and integrity.' VARA has codified the right to integrity to provide 'the author of a work of visual art' the right (A) to prevent any intentional destruction, mutilation, or other modification of that work that would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. In Cohen I, the Court held that plaintiffs' aerosol art comes under VARA's protection as works of 'visual art.' Section 113(d)(1) of VARA provides that In a case in which - (A) a work of visual art has 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 of the work as described in section 106A(a)(3), and  (B) the author consented to the installation of the work in the building either before the effective date set forth in section 106A(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply. Section 113(d)(2) provides, in part, that  If the owner of a building wishes to remove a work of visual art that is a part of such building and which can be removed from the building without the destruction, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106A(a) shall apply unless- (A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or (B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal. 'Section 113(d)(1) deals with works of visual art that cannot be removed without causing destruction, mutilation, or other modifications to the work. Section 113(d)(2) deals with works of visual art that can be removed without causing such harm.' Under (d)(1), if a work is not removable without destroying, mutilating, distorting, or otherwise modifying the work, the artist's VARA right of integrity under § 106A(a)(3) attaches, and the artist may sue to prevent the destruction of the work unless the right is waived 'in a written instrument . . . that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.' Damages that may be awarded for the violation of the artist's rights of attribution and integrity under § 106A(a)(3) are the same that apply for copyright infringement, namely actual (including profits) and statutory. 

G&M (D) owned run-down warehouses in the 5Pointz area. D engaged Cohen (P) to rent out warehouse space as art studios. P was the de facto curator both to run the site and pick the works he thought were of merit. Nothing was ever reduced to writing and D only verbally laid out three rules for what could be put on the walls: no pornography, no religious content, and nothing political. In his role, P established a system of rules for both the creation and curation of the art, spending seven days a week without pay to bring 5Pointz to fruition. Rental agreements for the artists included outdoor wall space for spray paint art. P determined space allotments and times for display before being painted over. Very quickly 5Pointz became an egalitarian place. The artists came from many backgrounds. It showcased the works of renowned aerosol artists. Over time, crime in the neighborhood dropped and the site became a major attraction drawing thousands of daily visitors, including busloads of tourists, school trips, and weddings. The location appeared in music videos and even a movie. D had nothing to do with day-to-day operations. 5Pointz was organized into short-term rotating walls and long-standing walls. The short-term walls would change on a daily or weekly basis. Long-standing walls were more permanent, although a high-quality piece could achieve permanence even if not initially placed on a long-standing wall; an artist's reputation was not sufficient to secure long-standing status. P had the final say as to the duration of the pieces, he always spoke with the artists about their planned lifespan and eventual replacement. 'For long-term productions, where people invested time and money, I would communicate with them. I would reach out to them. In some instances, I would tell them to come back and actually egg them on to do something really better. As the bar got raised, everybody performed better.' 5Pointz operated not just as a creative space, but as a competitive place. Artists would compete to outdo one another and earn prominent placement on a long-standing wall. The walls facing the passing 7 train, which were seen by millions of commuters, the artists prized the walls near the loading docks, which had the most foot traffic, and the walls inside the buildings, which were generally long-standing. Over10,000 works were destroyed while Cohen was in charge. It was not anarchy. Most of the best works by the best artists achieved permanent or semi-permanent placements on long-standing walls. Under P's control, D witnessed his buildings emerge as a mecca for the world's largest collection of quality outdoor aerosol art. One day, D decided to tear down the warehouses and replace them with luxury condominiums. P filed an application with the City Landmark Preservation Commission to preserve the site as one of cultural significance. It was denied because the artistic work was of too recent origin. P also sought funding to buy the property, which had been valued at $40 million. However, this fell through in October 2013 when D obtained a necessary variance, instantly raising the property value to more than $200 million. Twenty-one artists (Ps), including P, sued under VARA to enjoin the removal of the art. As soon as the Court denied Ps' application for a preliminary injunction, D directed the whitewashing of virtually all the artwork. None of the covered works was salvageable. Ps were no longer allowed on the site, even to recover the scattered remnants of their ruined creations. Ps sought monetary relief under VARA. The court allowed D to proceed with the development. A jury found liability for 36 of 49 works. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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