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Cohen v. G&M Realty L.P.

United States District Court for the Eastern District of New York

February 12, 2018, Decided; February 12, 2018, Filed

Case No. 13-CV-05612(FB)(RLM); Case No. 15-CV-3230(FB)(RLM)

Opinion

 [*426]   [***1710]  DECISION

BLOCK, Senior District Judge:

TABLE OF CONTENTS

A. The Relevant Statutory Framework

B. The Advisory Jury

C. The Witnesses and Evidentiary Landscape

A. The Advent and Evolution of 5Pointz

B. The Walls

1. Covering

2. Short-Term Rotating Walls vs. Long-Standing Walls

C. The Planned Demolition

D. The Whitewashing

A. Temporary Works of Art

B. Works of Recognized Stature

1. Recognized Stature of Individual Artworks

a. The Long-Standing Works

b. Other Works

C. Mutilation and Prejudice to Honor or Reputation

A. Actual Damages

B. Statutory Damages

1. Willfulness

2. The Statutory Factors

a. The Infringer's State of Mind

b. The Expenses Saved, and Profits Earned, by the Infringer

c. Revenue Lost by the Copyright Holder

d. The Deterrent Effect on the Infringer and Third Parties

e. The Conduct and Attitude of the Parties

3. The Statutory Damages Award

CONCLUSION

APPENDIX

This marks the latest chapter in the ongoing saga of what has commonly become known as [**2]  the 5Pointz litigation. Plaintiffs, 21 aerosol artists, initiated this lawsuit over four years ago by seeking a preliminary injunction under the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A, against defendants Gerald Wolkoff ("Wolkoff") and four of his real estate entities to prevent the planned demolition by Wolkoff of his warehouse buildings in Long Island City and consequent destruction of plaintiffs' paintings on the walls of the buildings.

On November 12, 2013, after a hearing, the Court issued an order denying preliminary injunctive relief and stating that "a written opinion would soon be issued." ECF No. 34. Rather than wait for the Court's opinion, which was issued just eight days later on November 20th, Wolkoff destroyed almost all of the plaintiffs' paintings by whitewashing them during that eight-day interim.

In its extensive opinion the Court initially noted that Wolkoff's buildings "had become the repository of the largest collection of exterior aerosol art . . . in the United States" and that this litigation "marks the first occasion that a court has had to determine whether the work of an exterior aerosol artist—given its general ephemeral nature—is worthy of any protection [**3]  under the law." Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 214 (E.D.N.Y. 2013) ("Cohen I").

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320 F. Supp. 3d 421 *; 2018 U.S. Dist. LEXIS 22662 **; 125 U.S.P.Q.2D (BNA) 1708 ***; Copy. L. Rep. (CCH) P31,224; 2018 WL 851374

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

Subsequent History: Affirmed by Castillo v. G&M Realty L.P., 2020 U.S. App. LEXIS 5228 (2d Cir. N.Y., Feb. 20, 2020)

Prior History: Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212, 2013 U.S. Dist. LEXIS 165242 (E.D.N.Y., Nov. 20, 2013)

CORE TERMS

artists, stature, infringement, paint, whitewashing, mutilation, visual, destroyed, temporary, destruction, artwork, distortion, reputation, long-standing, site, modification, aerosol, willfully, advisory, media, permanence, modified, jurors, museum, installation, injunction, partially, visible, condos, Bulbs