Street Art Removal Creates Millions in Damages

February 22, 2018

A Lawsuit

Graffiti artists sued the same property owner for covering their artwork with whitewash. The owner had been prepping the building for demolition so that the land could be re-developed as luxury condominiums. He has been ordered to pay $6.75 million in damages. Cohen at *19

So, a person knocked down a building he owned, and now he owes millions to some graffiti artists? How did we get here?


The first issue to get out of the way was that the graffiti in this case was not the product of random acts of vandalism. Gerald Wolkoff, a defendant in the case, owns the four properties at issue. Cohen at *1. In 2002 he placed Jonathan Cohen, the main plaintiff in the case, in charge of the warehouses. Id. at *6. The scene was described by the court:

The warehouses were largely dilapidated and the neighborhood was crime infested. There was no control over the artists who painted on the walls of the buildings or the quality of their work, which was largely viewed by the public as nothing more than graffiti.


Mr. Cohen was—and is—an “aerosol artist.” Cohen and his friends rented space in the warehouses and began cleaning up the area. In addition to smaller things like throwing away garbage, they also installed lighting and cameras. Id. Their biggest addition to the buildings, however, were in the new “exterior aerosol art.” Id. at *1.

Wolkoff was ecstatic. “I thought it was terrific,” he said. Id. at *6. There were only three (verbal) rules: 1) No pornography, 2) nothing religious, and 3) no politics. Id. At the time of the whitewashing, there were 49 works of art, by 21 artists listed in the suit, constituting the “largest collection of exterior aerosol art . . . in the United States.” Id. at *1. The site drew tourists, school fieldtrips, weddings, and even the 2013 film “Now You See Me.” Id. at *6.

The relationship was strong and positive. That was until, in the Court’s words, “Wolkoff decided over a decade later that the economic climate was ripe to convert the site into luxury condos.” Id. The lawsuit was filed under the Visual Artists Rights Act of 1990, or “VARA.”

The Law

VARA is a protection of an artist’s “moral” rights. Cohen at 2. It is an update to Copyright law, within the broader realm of intellectual property rights that include Patent and Trademark law. The two moral rights being protected are attribution and integrity.  The right of attribution is found in subdivision (a) paragraphs (1) and (2), but were not at issue in this case. Id. at fn2. The right of integrity is found in subdivision (a) paragraph (3), which reads:

(3) [Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—] subject to the limitations set forth in section 113(d), shall have the right-

(A) to prevent any intentional distortion, mutilation, or other modification of that work which 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.

If a violation is found, the artist may be entitled to either actual or statutory damages. 17 U.S.C.A. § 504(a)(1), (2). There is no limit on actual damages, but statutory damages have a range of $750 minimum to $30,000 maximum for an ordinary violation. Id. at subdiv. (c)(1). However, even this $30,000 maximum can be increased to $150,000 if the violation was “willful.” Id. at subdiv. (c)(2).

How It Played Out

The walls of the buildings were covered in graffiti, but when and where and by who was tightly controlled by Cohen. Cohen at *7–*8. Some walls were set aside for beginners while others were set aside for more permanent works. Id. Some works that were originally intended to be temporary became permanent later because of their artistic quality or popularity. Id. The Court focused on these permanent works. Id. at *12–*13.

There were rumblings that something was going to happen to the buildings as early as 2011. Id. at *8. Cohen discovered that Wolkoff had started pursuing the permits and doing the legal legwork in 2013. Id. They filed for City Landmark status and were denied. Id. They began raising funds to buy the property, but the price-tag soared out of reach when Wolkoff got the variance he needed to build luxury condos. Id.  Cohen and crew applied for a preliminary injunction to prevent the demolition while they sorted out their remaining options, but it was denied. Id.

Wolkoff wasted no time. He directed a crew to whitewash the walls and completed the work in the eight days between the hearing on the injunction and the issuing of the written opinion. Id. at *1, *8 While some works were spared or only partially damaged, Wolkoff also barred all the artists from accessing their works. Id. at *8, fn8. An expert for plaintiffs later testified that it was technologically feasible to remove the artwork, but this would have required access. Id. at *16.

The Court ultimately found Wolkoff liable under VARA for the destruction of 45 out of the 49 works at issue. Id. at *19. The Court also found that Wolkoff acted “willfully” under the statute, and assessed the maximum damages available of $150,000 per work. Id. Multiplied by 45 works, the total verdict was $6,750,000.


 In a searing conclusion that lamented in turns the loss of the artwork, the missed opportunity for one last huzzah for the artists and many tourists, and castigated Wolkoff for not being willing to wait until the day of demolition, the Court summarized its justification in bringing the full force of the law to bear with the statement:

“If not for Wolkoff’s insolence, these damages would not have been assessed.” Id. at *16–*19.


Cohen et al. v. G&M Realty L.P. et al., 2018 WL 851374 (E.D.N.Y. Feb. 12, 2018)


Castillo et al. v. G&M Realty L.P. et al., 1:15CV03230 (E.D.N.Y. June 3, 2015)

Image Source: REUTERS/Jose Manuel Ribeiro

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