This month, in Cohen v. G&M Realty L.P., the U.S. Supreme Court denied certiorari to Jerry Wolkoff’s GM Realty, which had urged the Court to strike down certain “unconstitutionally vague statutory provision[s]” of the Visual Artists Rights Act of 1990 (“VARA”) on the basis that they leave “property owners across the country with considerable uncertainty when it comes to ownership of art.”  The denial of review by the Supreme Court lets stand the Second Circuit’s affirmance of the Eastern District of New York’s imposition of the maximum statutory damages on GM Realty and its codefendants for their “willful” destruction of the plaintiffs’ public aerosol art that had been painted onto the exteriors of empty buildings owned by GM Realty with its consent.

As reported previously on this blog, in February 2018, District Judge Fredrick Block of the Eastern District of New York found that the defendant real estate developers, including Wolkoff, destroyed forty-five aerosol art works of “recognized stature” in violation of VARA.[1] Judge Block ordered that the defendants pay the maximum statutory penalty for each work—$150,000 each, for a total of $6.75 million—after finding that Wolkoff’s unjustified and premature whitewashing of the aerosol works in 2013 constituted “willful” destruction under the statute.[2]  On June 13, 2018, Judge Block denied the Defendants’ post-trial motion to grant a new trial or vacate the February 2018 judgment in an impassioned decision previously discussed on this blog.[3]  The District Court decision constituted the first judicial application of VARA to aerosol art.

The developers appealed the decision to the Second Circuit shortly thereafter.  In February 2020, in an opinion written by Circuit Judge Parker, a three-judge panel of the Second Circuit unanimously affirmed the District Court’s decision and rebuked Wolkoff for his attempt at a “quick-fix” in response to the artists’ VARA claims.[4]  Importantly, the Second Circuit also affirmed that temporary artworks, like aerosol art, may qualify as works of “recognized stature” under VARA.[5]

The developers again appealed, arguing in their petition for certiorari to the Supreme Court that the “recognized stature” standard applied by the Second Circuit was unconstitutionally vague, and that the statutory damages awarded were “grossly excessive,” in violation of the Due Process Clause.[6]  On October 5, 2020, the Supreme Court denied certiorari to the developer’s petition.[7]   As is its custom, the high court did not provide any explanation for its denial.  The denial cements the Second Circuit’s decision; the case now returns to the Eastern District of New York for a hearing on plaintiffs’ application for attorney’s fees.

Artists are heralding this final victory as a historic decision in artists’ rights, and at least one legal commentator is predicting that the Court’s decision not to take up the case “should embolden artists to see the law as a weapon they can use to obtain damages when work they create legally is destroyed.”  The victory also serves as a clear warning to property-owners considering a “quick-fix”—like whitewashing—in response to potential VARA claims.

 

 

[1] Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421, 432 (E.D.N.Y. 2018).

[2] Id. at 443.

[3] Cohen v. G&M Realty L.P., 2018 WL 2973385 (E.D.N.Y. June 13, 2018).

[4] Castillo v. G&M Realty L.P., 950 F.3d 155, 167 (2d Cir. 2020).

[5] Id. at 167-68.

[6] Petition For Writ of Certiorari, G&M Realty L.P. v. Castillo, 591 U.S. __ (2020) (No. 20-66).