On Monday, G&M Realty, a real estate development company, asked the U.S. Supreme Court to reverse a $6.75 million damages award that the U.S. District Court for the Eastern District of New York entered in favor of a group of graffiti artists after G&M Realty, without warning, whitewashed the artists’ work, which had been displayed on a collection of dilapidated warehouses in New York City known as “5Pointz.”

The ongoing dispute between G&M Realty and the graffiti artists goes back several years.

In 2002, G&M Realty’s then-owner Jerry Wolkoff (who passed away just last week), recruited a group of graffiti artists to turn the 5Pointz warehouses into an exhibition space for artists. Numerous artists painted the buildings’ exterior walls and 5Pointz became a tourist attraction for visitors from around the world.

However, in 2013, Wolkoff sought municipal approval to demolish 5Pointz to clear a space for the construction of luxury apartments. After unsuccessfully seeking to have 5Pointz designated as a “cultural site,” several of the graffiti artists sued G&M Realty in the Eastern District of New York, under the Visual Artists Rights Act (“VARA”) to prevent destruction of the site.

VARA, a rarely litigated copyright law, provides that visual works of art meeting certain requirements afford their authors additional rights in the works, regardless of any subsequent physical ownership of the work itself or who holds the copyright to the work. The provision of VARA at issue in the 5Pointz case provides that authors of works of “recognized stature” may prohibit intentional or grossly negligent destruction of a work.

The Eastern District of New York denied the artists’ motion for a preliminary injunction. However, before the court could issue its opinion, Wolkoff directed workers to whitewash the artists’ works.

Near the conclusion of the trial, the parties agreed to waive a jury and the district court converted the jury to an advisory one. In February 2018, after the jury returned an advisory verdict in favor of the artists, the district court ruled that (1) 45 of the graffiti works had achieved “recognized stature” under VARA, (2) G&M Realty had violated VARA by destroying the works, and (3) G&M Realty’s violation was willful.

In concluding that the 5Pointz works had achieved protectable, “recognized stature,” the district court observed that the works had been recognized in, among other things, films, news articles, and social media. The district court also cited with approval expert testimony regarding the works’ artisanship and the reputation of the 5Pointz works in the art world.

The district court subsequently entered a $6.74 million award against G&M Realty.

In February 2020, the United States Court of Appeals for the Second Circuit affirmed the district court’s decision, defining a work of “recognized stature” as “one of high quality, status, or caliber that has been acknowledged as such by a relevant community.”

In its recent petition for Supreme Court review, G&M Realty argued that the part of VARA allegedly protecting the 5Pointz art from destruction is unconstitutionally vague, leaving property owners nationwide mired in uncertainty regarding the ownership of art. More specifically, G&M Realty maintained that the term “recognized stature,” as used in VARA, is undefined and unconstitutionally vague because it fails to provide adequate notice of what constitutes protected works, as well as what constitutes prohibited conduct.

G&M Realty further argued that VARA fails to identify “who must do the recognizing” with respect to the “stature” of the visual work. While the Second Circuit held that a “relevant community” should make this determination, G&M Realty argued that the Second Circuit failed to explain (1) how the standard applies “when members of these ‘communities’ do not agree;” (2) “how many members must ‘recognize’ a work’s stature; and (3) “whether the requisite recognition is qualitative, quantitative, or both.”

Litigants rarely invoke the protections of VARA and courts have rarely had the opportunity to interpret its provisions. If the Supreme Court accepts G&M Realty’s invitation to revisit VARA, the Court’s decision could have a significant impact on the frequency with which lawyers and litigants seek to invoke VARA in the future. Indeed, depending on the outcome of such a decision, a rarely utilized law could become a much more popular avenue for artists seeking relief.

The case is G&M Realty LP v. Castillo, U.S. Docket No. pending, Petition for Writ of Certiorari filed on July 20, 2020.