On June 13, 2018, Judge Frederic Block of the Eastern District of New York issued an impassioned decision upholding the $6.75 million damage award he granted the aerosol artists of 5Pointz in February 2018. The court denied the defendants’ post-trial motion to grant a new trial or vacate the February 2018 judgment under Federal Rules of Civil Procedure 59(a) and 52(b).
As discussed previously on this blog, this case arose from defendant property-developer Gerald Wolkoff’s decision to whitewash his Long Island City building complex (“5Pointz”), thereby destroying the extensive aerosol art he had previously permitted artists to paint on its walls. Wolkoff acted in the aftermath of Judge Block’s denial of those artists’ application for a preliminary injunction against Wolkoff’s demolition of 5Pointz, but before Judge Block had issued a written decision and without providing the artists or the community any notice. On February 12, 2018, after a three-week trial, Judge Block ruled that the aerosol artworks at issue were of “recognized stature” under the Visual Artists Rights Act of 1990 (“VARA”) and that Wolkoff’s “willful” destruction of them warranted the maximum amount of statutory damages.
In moving for a new trial or to vacate Judge Block’s judgment, the defendants put forth two central arguments. First, they asserted that the court made several errors in applying the “recognized stature” standard under VARA. They contended that the court erroneously relied on plaintiffs’ expert Renee Vara’s after-the-fact assessments of the merit of the works, which they argued could not serve as proof that the works had achieved recognized stature at the time of their destruction. They separately argued that Jonathan Cohen, the curator of 5Pointz, judged the quality of the artists, not the quality of the works, when he decided to allocate wall space to particular artists, so his assessments of artistic merit were irrelevant to the “recognized stature” inquiry. They further argued that the court failed to make individualized findings of fact on recognized stature for each individual work. Second, the defendants argued that no basis existed for the court to find that Wolkoff acted willfully when he surreptitiously whitewashed the walls of 5Pointz in the middle of the night, because Wolkoff had not violated “clearly established law.” They claimed that, when Wolkoff whitewashed the building, it was not “clearly established” that VARA could apply to aerosol art at all, or that the works at issue were of “recognized stature.”
Judge Block stood his ground. While noting summarily that there was “no basis” to grant the defendants’ motions under the relevant standard for setting aside a prior ruling, he acknowledged that the amount of public interest surrounding the case warranted the “fullest explication of the bases for [his] decision.” Fully explicate he did, in a ruling and appendix totaling 89 pages (this in addition to his original 100-page February 2018 opinion).
Judge Block first provided further analysis of his finding of willfulness. He again focused on Wolkoff’s haste in whitewashing 5Pointz as soon as the court denied the artists’ motion for preliminary injunctive relief. Judge Block argued that Wolkoff acted “at his peril” in doing so, in light of the necessarily “interlocutory, tentative, [and] provisional” nature of a ruling on a preliminary injunction, about which Judge Block “presum[ed]” that Wolkoff’s “skilled counsel” had advised him. In response to the defendants’ argument that Wolkoff had not acted willfully because he had not violated clearly established law, Judge Block asserted that the defendants had “conjure[d] up [that] argument out of whole cloth,” and that the Second Circuit has consistently held that willfulness can be “inferred” from the defendants’ conduct.
Judge Block underscored Wolkoff’s disingenuous testimony and uncooperative demeanor on the witness stand as further factors in the willfulness determination. Judge Block found that Wolkoff had “knowingly mis[led] the Court on a material issue” when he claimed, during the October 2013 preliminary injunction proceedings, that he risked losing “hundreds of millions of dollars” unless he tore down 5Pointz by the end of 2013; at trial four years later, Wolkoff acknowledged that he did not even apply for the requisite demolition permit until March 2014. Judge Block deemed “incredible” Wolkoff’s attempts to justify his actions as having been in the artists’ best interest, and he highlighted Wolkoff’s “persistent refusal to directly answer the questions posed to him by [the court] and under cross-examination,” concluding succinctly, “I did not believe him.” Ultimately, however, it was Wolkoff’s “conscious material misrepresentation” regarding the “imminent” need to demolish 5Pointz that most “stuck in [Judge Block’s] craw,” as Judge Block asserted that, without that misrepresentation, he “would not have rendered the same decision” on the artists’ request for a preliminary injunction. “In the final analysis,” Judge Block concluded, “in addition to Wolkoff’s other reckless behavior, knowingly misleading the Court on a material issue simply cannot be condoned.”
Judge Block also defended his ruling that the works were of “recognized stature” under VARA, noting that courts should use common sense to determine whether a work warrants this broad protection. In response to the defendants’ argument that Cohen’s testimony was not sufficient proof of the works’ recognized stature, Judge Block stated that he “could not disagree more.” Referring to over 500 press mentions about Cohen, Judge Block explained that Cohen was one of the most prominent aerosol artists in the world and that he was “uniquely qualified” to recognize the stature of the 5Pointz works. “No one would contend that a work of art selected by the curator of the Museum of Modern Art, the Guggenheim, or the new Whitney Museum should not qualify as a work of recognized stature,” Judge Block reasoned, “[and] [t]he same can be said of the curator of 5Pointz.” To the defendants’ argument that the works needed to have acquired recognition prior to their destruction, Judge Block noted that VARA explicitly leaves that question open. Finally, in response to the defendants’ criticism that the court did not make its work-by-work findings explicit, Judge Block devoted a 60-page appendix to support his “recognized stature” determinations.
As discussed previously on this blog, it remains to be seen whether Judge Block’s emphatic ruling and sizeable damages award will serve to protect otherwise vulnerable artists – by encouraging property owners to negotiate VARA rights with them in advance – or, perhaps counterintuitively, will act to the detriment of artists and the general public by disincentivizing developers from commissioning or allowing art on their property at all. Judge Block’s recent decision makes clear he is aware of this debate and confidently sides with the former position. In a footnote, he responded head-on to the latter criticism by citing a recent New York Times article reporting that aerosol artists have been commissioned to “bring a 5Pointz vibe to Lower Manhattan” as clear evidence that his decision has not “operated as . . . a deterrent” to public art. Time will tell whether this continues to hold true.
Assuming, as Judge Block did in this decision, that Wolkoff intends to appeal, this case may provide more guidance on whether the three disjunctive prongs of the Carter test (recognition of stature by (i) art experts; (ii) other members of the artistic community; or (iii) some cross-section of society) correctly interpret VARA’s requirement of “recognized stature.” While Judge Block suggested that even that test might be too rigorous, it is not beyond the realm of possibility that a panel of aesthetically conservative appellate judges could conclude that “aerosol art” sprayed on the exterior of decaying buildings and predestined to eventual destruction could not be what Congress had in mind when it created this requirement. Likewise, the reviewing court could take exception to Judge Block’s reliance on Jonathan Cohen’s appraisals of the works at issue as worthy of preservation – when he himself had previously “curated” them for inclusion at 5Pointz – or to Judge Block’s analogizing Cohen to curators at establishment institutions such as the Museum of Modern Art. Finally, it is not unusual for appeals courts to reverse or temper lower court decisions when they perceive that the trial judge lost his objectivity because of anger – even well-merited anger – at one of the parties. So it would not be surprising if the reviewing court reduced the $6.75 million award because – as Judge Block made explicit – he would have awarded a modest sum for the destruction of these works but for Wolkoff’s spiteful performance.
On the other hand, the appeals court could affirm Judge Block because it, too, did not want to condone Wolkoff’s behavior, without giving further guidance on “recognized stature” or making a generalized statement about protection of street art outside the unusual facts of how 5Pointz came to be.
Hilary McDonnell assisted with drafting this post.
 Under Rule 59(a), a losing party can ask the court to re-try a case if significant legal errors occurred during the trial. The moving party must make the motion within 28 days after the court formally enters its final judgment.
 A Rule 52(b) motion, which often accompanies a Rule 59(a) motion, allows a court to amend its judgment or make additional findings.
 Beginning in the early 1990s, Wolkoff agreed to let aerosol artists paint on the 5Pointz walls. Cohen v. G&M Realty L.P., No. 13-CV-05612(FB)(RLM), 2018 WL 851374, at *6 (E.D.N.Y. Feb. 12, 2018). 5Pointz soon became a mecca for internationally recognized aerosol artists, but Wolkoff decided to knock down the building in 2013 to make room for new, high-rise residential buildings. Id. The 5Pointz artists sued, seeking a preliminary injunction against Wolkoff under VARA. Id. at *1. On November 13, 2013, Judge Block denied the plaintiffs’ motion. Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 214 (E.D.N.Y. 2013). On November 20, 2013, Wolkoff unexpectedly whitewashed 5Pointz, destroying 45 works of aerosol art. Cohen, 2018 WL 851374, at *6. In response, the artist-plaintiffs filed a Second Amended Complaint seeking damages under VARA. See id.
 17 U.S.C. § 504(c)(2).
 17 U.S.C. § 106A(a)(3)(B).
 Def.’s Mem. in Supp. of Mot. for a New Trial, or Alternatively, to Vacate the J. in Pls.’ Favor and Enter J. for Defs., or Alternatively, for Remittur, at 4.
 Id. at 14.
 Id. at 11.
 Id. at 26.
 Id. at 7.
 Cohen, 2018 WL 2973385, at *1.
 Id. at *2.
 Id. at *6.
 Id. at *3.
 Id. at *4. Wolkoff’s willful acts also seemed to offend Judge Block on a personal level, as Judge Block repeatedly used the first person throughout the opinion. Judge Block rarely referred to “the court,” but instead used the word “I” nearly fifty times in his opinion.
 Id. at *5.
 Id. at *2.
 Id. at *7.
 Id. While Judge Block reaffirmed that the test first enunciated in Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994) rev’d on other grounds, 71 F.3d 77 (2d Cir. 1995), is the appropriate standard for determining recognized stature, he also emphasized that there should not be “rigid views as to whether a particular work is worthy of protection as a work of visual art.” Cohen, 2018 WL 2973385, at *7.
 Id. at *8.
 Id. at *10. While Judge Block expressly interpreted the Carter test to allow for a finding of “recognized stature” where a work is viewed as “meritorious” by art experts or members of the artistic community or some cross-section of society, id. at *7, he found that each work at issue in fact satisfied all three prongs.
 Id. at *10 n.19.
 Carter, 861 F. Supp. at 325.
 Cohen, 2018 WL 2973385, at *2.