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Castillo v. G&M Realty L.P.

United States Court of Appeals for the Second Circuit

August 30, 2019, Argued; February 20, 2020, Decided

Nos. 18-498-cv (L), 18-538-cv (CON)

Opinion

 [*162]  BARRINGTON D. PARKER, Circuit Judge:

Defendants-Appellants G&M Realty L.P., 22-50 Jackson Avenue Owners, L.P., 22-52 Jackson Avenue LLC, ACD Citiview Buildings, LLC, and Gerald Wolkoff (collectively "Wolkoff") appeal from a judgment of the United States District Court for the Eastern District of New York (Frederic Block, J.). The court concluded that Wolkoff violated the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ("VARA"), by destroying artwork of Plaintiffs-Appellees, artists who created and displayed their work at the 5Pointz site in Long Island City, New York. We hold that the district court correctly concluded that the artwork created by Appellees was protected by VARA and that Wolkoff's violation of the statute was willful. Furthermore, the damages awarded involved no abuse of discretion. Accordingly, we affirm the judgment below.

The facts as found by the district court established that in 2002, Wolkoff undertook to install artwork in a series of dilapidated warehouse buildings that he owned [**3]  in Long Island City, New York. Wolkoff enlisted Appellee Jonathan Cohen, a distinguished aerosol artist, to turn the warehouses into an exhibition space for artists. Cohen and other artists rented studio spaces in the warehouses and filled the walls with aerosol art, with Cohen serving as curator. Under Cohen's leadership, the site, known as 5Pointz, evolved into a major global center for aerosol art. It attracted thousands of daily visitors, numerous celebrities, and extensive media coverage.

"Creative destruction" was an important feature of the 5Pointz site. Some art at the site achieved permanence, but other art had a short lifespan and was repeatedly painted over. An elaborate system of norms—including Cohen's permission and often consent of the artist whose work was overpainted—governed the painting process. Cohen divided the walls into "short-term rotating walls," where works would generally last for days or weeks, and "longstanding walls," which were more permanent and reserved for the best works at the site. During its lifespan, 5Pointz was home to a total of approximately 10,650 works of art.

In May 2013, Cohen learned that Wolkoff had sought municipal approvals looking to [**4]  demolish 5Pointz and to build luxury apartments on the site. Seeking to prevent that destruction, Cohen applied to the New York City Landmark Preservation Commission to have 5Pointz designated a site of cultural significance. The application was unsuccessful, as were Cohen's efforts to raise money to purchase the site.

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950 F.3d 155 *; 2020 U.S. App. LEXIS 5228 **; Copy. L. Rep. (CCH) P31,597; 2020 U.S.P.Q.2D (BNA) 10057; 2020 WL 826392

MARIA CASTILLO, JAMES COCHRAN, LUIS GOMEZ, BIENBENIDO GUERRA, RICHARD MILLER, CARLO NIEVA, KENJI TAKABAYASHI, NICHOLAI KHAN, Plaintiffs-Appellees, JONATHAN COHEN, SANDRA FABARA, LUIS LAMBOY, ESTEBAN DEL VALLE, RODRIGO HENTER DE REZENDE, WILLIAM TRAMONTOZZI, JR., THOMAS LUCERO, AKIKO MIYAKAMI, CHRISTIAN CORTES, CARLOS GAME, JAMES ROCCO, STEVEN LEW, FRANCISCO FERNANDEZ, Plaintiffs-Counter-Defendants-Appellees, KAI NIEDERHAUSEN, RODNEY RODRIGUEZ, Plaintiffs, v. G&M REALTY L.P., 22-50 JACKSON AVENUE OWNERS, L.P., 22-52 JACKSON AVENUE LLC, ACD CITIVIEW BUILDINGS, LLC, GERALD WOLKOFF, Defendants-Appellants.

Subsequent History: Amended February 21, 20201

US Supreme Court certiorari denied by G&M Realty L.P. v. Castillo, 2020 U.S. LEXIS 4495 (U.S., Oct. 5, 2020)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of New York. Nos. 15-cv-3230 (FB) (RLM), 13-cv-5612 (FB) (RLM), Frederic Block, District Judge, Presiding.

Defendants-Appellants are developers who destroyed aerosol artwork that Plaintiffs-Appellees had painted on buildings owned by Defendants-Appellants. They appeal from a judgment of the United States District Court for the Eastern District of New York (Block, J.) awarding statutory damages to Plaintiffs-Appellees under the Visual Artists Rights Act of 1990 ("VARA"). We hold that the district court correctly determined that temporary artwork may achieve recognized stature so as to be protected from destruction by VARA and that Plaintiffs-Appellees' work had achieved that stature. We also hold that the district court did not err in finding Defendants-Appellants' violations of VARA to be willful and that the district court's award of statutory damages was not an abuse of discretion. Accordingly, the judgment of the district court is AFFIRMED.

Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421, 2018 U.S. Dist. LEXIS 22662, 2018 WL 851374 (E.D.N.Y., Feb. 12, 2018)

Disposition: AFFIRMED.

CORE TERMS

artists, stature, artwork, site, destruction, painted, temporary, whitewashed, destroyed, visual, modification, mutilation, injunction, demolition, distortion, infringer, advisory, duration, aerosol, notice, installation, prominent

Copyright Law, Protected Subject Matter, Graphic, Pictorial & Sculptural Works, Works of Art, Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, De Novo Review, Criminal Infringement, Elements, Willfulness, Criminal Law & Procedure, Acts & Mental States, Mens Rea, Abuse of Discretion, Damages, Types of Damages, Statutory Damages