Attorney at Law Magazine – Minnesota Edition
Author: Steven C. Kerbaugh
If you know someone who loves modern art, perhaps you can relate to this scenario.You’re walking through MOMA and come upon a painting that looks like just a bunch of lines. And as your companion explains to you that it’s a brilliant example of the De Stijl movement, you respond with a blank stare. Or perhaps you’re a lover of contemporary art and can relate to explaining the subversive charm of a stencil on the side of a building depicting a leopard escaping from a bar code cage to someone who believes that “real” art comes framed in a gallery or museum. These can be tough spots.
There’s an inherently subjective component to art. People react differently upon seeing the same work. And novel subjects and mediums can be particularly difficult when they differ from preconceived notions of what art is or should be. As a result, demonstrating the value of new modes of artistic expression isn’t always easy.
Now imagine this. You’re a litigator charged with convincing a jury that aerosol painting on the side of a building in Queens is art of “recognized stature” entitled to protection under federal copyright law. That was the task of the attorneys representing street artists in a federal action in the United States District Court for the Eastern District of New York titled Jonathan Cohen, et al. v. G&M Realty L.P., et al. (the 5Pointz Litigation). And it paid off, bigly.
The plaintiffs, a group of 21 aerosol artists, commenced the 5Pointz Litigation against Gerald Wolkoff and real estate entities under his control in 2013. At the time, they sought an injunction to prevent Wolkoff from demolishing derelict property on which he had allowed the plaintiffs to create and display their work for over 10 years. Before the court issued its order on the plaintiffs’ motion for preliminary injunctive relief, Wolkoff destroyed most of the plaintiffs’ paintings by whitewashing the artwork without providing the plaintiffs an opportunity to remove or otherwise preserve it. In the process, Wolkoff destroyed what the plaintiffs alleged was “one of the foremost collections of aerosol art in the world,” which came to be known as “Graffiti Mecca.”