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The Visual Artists Rights Act of 1990 (VARA) gives the author of a work of visual art the right to prevent any destruction of a work of recognized stature and provides that any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C.S. § 106A(a)(3)(B). VARA further permits the artist to prevent any intentional distortion, mutilation, or other modification of his or her work which would be prejudicial to his or her honor or reputation, and provides that any intentional distortion, mutilation, or modification of that work is a violation of that right. § 106A(a)(3)(A). The latter provision applies regardless of a work's stature. These rights may not be transferred, but they may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. § 106A(e)(1).
In 2002, 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") undertook to install artwork in a series of dilapidated warehouse buildings that he owned 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. In May 2013, Cohen learned that Wolkoff had sought municipal approvals looking to 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. Subsequently, Cohen, joined by numerous 5Pointz artists, sued under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ("VARA"), to prevent destruction of the site. Upon the expiration of the TRO granted to plaintiffs, Wolkoff began to destroy the artwork. Wolkoff began to destroy the artwork. He banned the artists from the site and refused them permission to recover any work that could be removed. The district court found that 45 of the works had achieved recognized stature, that Wolkoff had violated VARA by destroying them, and that the violation was willful. While the court did not award actual damages to the plaintiffs, it awarded statutory damages, holding that such would serve to sanction Wolkoff's conduct and to vindicate the policies behind VARA. Wolkoff challenged the judgment.
The Court held that the district court properly found Wolkoff liable under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C.S. § 106A, for destroying plaintiff artists' artwork at Wolkoff’s site because it properly determined that temporary artwork might achieve recognized stature so as to be protected from destruction by VARA. Moreover, the Court held that the plaintiff artists' had demonstrated that their work achieved that stature. The Court further held that the district court did not abuse its discretion in awarding statutory damages under 17 U.S.C.S. § 504(b) and (c) because it properly found that Wolkoff’s violation of VARA was willful as the evidence showed a deliberate choice to violate VARA rather than to follow the statutory notice procedures.