In what will prove to be a very interesting decision, however it comes out, a New York City developer is appealing a lower court ruling that ordered him to pay a group of artists $6.8 million in damages, for destroying graffiti which they created on his property.
Some decades ago, the developer had purchased a group of old factory buildings in Long Island City, Queens, with the intent of eventually redeveloping them or the land on which they sat. Beginning in the 1990’s, graffiti artists were given permission to rent studios in the crumbling complex, and to paint all over the buildings. Eventually the site became known as “5Pointz”, and attracted visitors and arts media coverage from all over the world.
As gentrification in recent years caused real estate prices to spiral into the stratosphere, Long Island City became one of the key epicenters of this trend, thanks to its large concentration of abandoned industrial and commercial structures. To take advantage of the market conditions, the decision was finally taken by the property owner to demolish 5Pointz, and redevelop the site with condos. The requisite public hearings and permit applications began in 2013, despite efforts by the graffiti makers and their supporters to stop it. As part of the redevelopment, most of the decades’ worth of graffiti that had accumulated at the site was whitewashed prior to demolition.
The “aerosol artists” [eyeroll] then sued claiming, inter alia, that they had not been given 90 days’ notice to take action with respect to the impending destruction of their art. To the surprise of many, a trial court agreed with the artists and awarded damages against the developer, who is now appealing. The basis for the appeal, in part, appears to be a somewhat powder keg argument that graffiti art should not be accorded the same protections as other types of art.
This isn’t an art law blog, and I don’t want to go into a lengthy discussion of the competing legal rationales involved in this case. That being said, whatever one thinks of graffiti art – more on that in a moment – the developer in this case should never have agreed to permit graffiti or artistic use of the complex in the first place, and certainly not for such a lengthy period of time. The developer even chose to incorporate some of the graffiti art which was not destroyed into the interior spaces of the new towers, and unsuccessfully attempted to trademark the term “5Pointz” – a moniker created by one of the graffiti artists – to market the property, arguing that he owned the term because he owned the buildings.
Apart from the idiosyncratic aspects of the 5Pointz case however, the larger issue here is the legitimization of graffiti art in general, which is why the outcome of this appeals process could be of greater significance than might at first appear. The proliferation of and acceptance of graffiti is a serious problem, and one which I maintain has been encouraged by the art establishment. The celebration of the subversive at the expense of basic property rights and the rule of law is the stock-and-trade of most Contemporary Art aficionados, from dealers and curators to reporters and collectors. And unfortunately, the rest of us who do not care for it must bear the consequences of their celebration of such efforts.
Back in August for example, someone decided to vandalize a Romanesque sculpture on one of the façades of the famous Cathedral of Santiago de Compostela in Spain, using a blue permanent marker to paint over the face and part of the body of a saint with references to the band, Kiss. It took restorers hours of work, including the use of laser treatments, to remove the graffiti, and the event raised an outcry in the international art press. The Cathedral, a UNESCO World Heritage site, had just been cleaned after a lengthy restoration that took years and cost millions of dollars.
Meanwhile, just down the street at the Centro Gallego de Arte Contemporaneo (CGAC), Santiago’s museum of Contemporary Art, CGAC held an “artists’ workshop” this summer which included the work of – you probably already guessed it – a self-described “subversive” graffiti artist.
This is an all-too-cute example of how the art establishment seeks to have things both ways. The art world simultaneously sows the seeds for destruction of existing works of art and architecture by raising an artist such as Banksy to heights of international fame unimaginable to any petty criminal – excuse me, I mean, “aerosol artist” – before him. Galleries and museums, media and the art press, by their fawning coverage of “subversive” graffiti art, are, in effect, encouraging others to go out and try to become the next Banksy themselves.
In the case of many European cities and towns, not just Santiago de Compostela, this state of affairs has helped to create an environment in which the antisocial and illegal behavior of those who choose to defile both public and private property with their “talent” is a seemingly unstoppable juggernaut. It’s impossible to travel anywhere in Europe now without seeing graffiti slathered all over, from street signs to shop doors, and local authorities seem to have given up the effort to swiftly and effectively prosecute those who engage in it. The notion of catching an “aerosol artist” and forcing them to do hours of community service removing graffiti from bus shelters, overpasses, and the like seems too harsh a penalty for most Europeans to contemplate (though if my readers are aware of such penalties actually being enforced anywhere in the EU, by all means please share a link with us all in the comments section.)
Yet even as we may tut-tut at the inaction of the Europeans, we are rapidly reaching the same point in the U.S. Taking Amtrak into Philadelphia just a few weeks ago for example, I was shocked at how graffiti coverage begins many miles outside of town, well before one actually comes within sight of the city itself. It made me wonder whether there is a national shortage of whitewash or flat gray house paint which has gone hitherto reported by the media.
No doubt some of the graffiti that we see in depressed areas of cities like Philadelphia is the work of those who are, in effect, crying for help. These are people living in desperate, dangerous conditions, with no hope for a better future, and they live a life of suffering which most of us cannot even begin to imagine. It doesn’t excuse their behavior, but it at least explains it; to be fair, rational adults, we need to acknowledge this.
That being said however, I suspect that a research statistician would be able to prove that most of the current crop of graffiti that we see is in fact of the, “Aren’t I cool? Now where’s my phone so I can snap a picture of this for my social media accounts before I go back to designing my next tattoo on my laptop,” variety. In fact, if you follow any art accounts on Instagram, you’re very much aware that the site is filled with images from events and exhibitions in which members of the Millennial bourgeoisie use graffiti to express their frustration at…I’m not sure what, exactly. Their local Whole Foods being out of avocados today?
Who knows how long the 5Pointz case will take to grind its way through the court system, or how high any further appeals might go, but the end result is absolutely going to be worth keeping an eye on. Will there be a narrow ruling, tailored to the particular circumstances of the case? Or will some appellate court create a broad precedent by which all future property owners, if they do not immediately take action to remove any trace of graffiti, will be stuck paying damages to “aerosol artists” if they attempt to remove their work at a later date? Stay tuned for developments.