Castillo v. G&M Realty L.P.

The Visual Artists Rights Act (VARA) gave the creator of a visual artwork the right to prevent destruction of a work “of recognized stature.” A written instrument signed by the creator was necessary to waive the right. If artwork was part of a building and removal of the work was not possible without damaging the work, the creator could waive his rights only by means of a written instrument signed by the creator and the building’s owner. Furthermore, VARA required the building owner to give the creator of the artwork notice and 90 days to remove the artwork if changes to the building threatened the work. VARA authorized courts to award statutory damages of up to $150,000 per artwork if the artwork was damaged willfully. Gerald Wolkoff (defendant), a principal in G&M Realty L.P. (G&M) (defendant), gave artist Jonathan Cohen (plaintiff) and others permission to cover the walls of old warehouses owned by G&M with aerosol art. The warehouses became an internationally known center for aerosol art known as 5Pointz. With Cohen’s permission, some of the artwork at the site was sometimes covered over by new art. In May 2013, G&M sought to demolish the site to build condominiums. Cohen, Maria Castillo, and other artists (collectively, the artists) (plaintiffs) sued under VARA to stop the demolition of the warehouses. The district court granted a temporary restraining order to block the demolition. However, the court denied the artists’ request for a permanent injunction. That night, Wolkoff banned the artists from the site and refused permission to remove artwork that could have been preserved. Several nights later, Wolkoff hired workmen to whitewash the art. The district court found that the art at 5Pointz was of recognized stature and that Wolkoff acted willfully. The court awarded the artists $6.75 million in damages. G&M appealed.