Graffiti artists see victory under Visual Artists Rights Act claim

A multi-million dollar verdict in favor of New York graffiti artists is now final. We previously wrote about the case when first filed in the trial court and after the jury’s verdict. In its first conference of the 2020 session, the U.S. Supreme Court rejected the appeal of real estate developer Gerald Wolkoff, who painted over the graffiti of dozens of artists on his “5Pointz” building in Queens.

The Court denied Wolkoff’s request to hear the appeal without comment. In his request, Wolkoff argued that the Visual Artists Rights Act – the law the artists sued to enforce – was unconstitutional because Congress did not provide a definition for the term works of “recognized stature” in the Act. According to Wolkoff, the law failed to provide the Constitutionally required fair notice of which works were protected from destruction.

In 2018, Judge Frederic Block of the Eastern District of New York awarded each artist $150,000 for a destroyed work – 45 in total – for a total of $6.75 million. Now that the judgment is final, the artists will seek to collect from the developer.

Mike Nepple is a partner in Thompson Coburn's Intellectual Property practice group.