United States District Court, E.D. New York
JONATHAN COHEN, SANDRA FABARA, STEPHEN EBERT, LUIS LAMBOY, ESTEBAN DEL VALLE, RODRIGO HENTER DE REZENDE, DANIELLE MASTRION, WILLIAM TRAMONTOZZI, JR., THOMAS LUCERO, AKIKO MIYAKAMI, CHRISTIAN CORTES, DUSTIN SPAGNOLA, ALICE MIZRACHI, CARLOS GAME, JAMES ROCCO, STEVEN LEW, and FRANCISCO FERNANDEZ, Plaintiffs,
G&M REALTY L.P., 22-50 JACKSON AVENUE OWNERS, L.P., 22-52 JACKSON AVENUE, LLC, ACD CITIVIEW BUILDINGS, LLC, and GERALD WOLKOFF, Defendants. MARIA CASTILLO, JAMES COCHRAN, LUIS GOMEZ, BIENBENIDO GUERRA, RICHARD MILLER, CARLO NIEVA, and KENJI TAKABAYASHI, Plaintiffs,
G&M REALTY L.P., 22-50 JACKSON AVENUE OWNERS, L.P., 22-52 JACKSON AVENUE, LLC, ACD CITIVIEW BUILDINGS, LLC, and GERALD WOLKOFF, Defendants.
MEMORANDUM & ORDER
FREDERIC BLOCK, Senior United States District Judge
this case first began on October 10, 2013, the plaintiffs
principally invoked the Visual Artists Rights Act of 1990
(“VARA”), 17 U.S.C. § 106A, to prevent the
destruction of their paintings, all of which adorned either
the exterior or the interior of buildings owned by the
defendants. Now, the plaintiffs and defendants move for
summary judgment. The defendants seek the dismissal of the
plaintiffs' third and final complaint, comprising VARA
and tort claims (“Cohen Complaint”); the
plaintiffs ask for the dismissal of the defendants'
counter-claim. For the reasons stated below, the
plaintiffs' motion is GRANTED, and the defendants'
motion is DENIED IN PART and GRANTED IN PART.
the history of this case has been set forth in the
Court's prior decision denying the plaintiffs'
request for a preliminary injunction, see Cohen v.
G&M Realty L.P., 988 F.Supp.2d 212
(E.D.N.Y. 2013), a brief overview will suffice.
several buildings comprising 5Pointz, owned by either Gerald
Wolkoff (“Wolkoff” or “Gerald”) or
one of the four named corporate defendants that he controls,
had housed various commercial enterprises for many years. In
the 1990s, however, uninvited graffiti by many
self-proclaimed aerosol artists colored the buildings'
exterior walls. In 2002, so as to control this problem,
Jonathan Cohen (“Cohen”), one of the plaintiffs,
approached Wolkoff and offered to become the curator of any
future works that would be permitted to be painted on the
walls. Though the agreement's precise terms remain
disputed, Wolkoff orally agreed to this general bargain.
Cohen's guidance, “the quality of the aerosol art
vastly improved, ” and “[t]he site became known
as 5Pointz and evolved into a mecca for high-end works by
internationally recognized aerosol artists.”
Id. at 219; see also 2d Am. Compl. ¶
1, No. 13-cv-5612 (“Cohen Compl.”).
Although Wolkoff recognized this fact and had even come to
appreciate the work, he and the companies he managed (as well
as his son, David Wolkoff) eventually decided to destroy the
5Pointz buildings and replace them with two-high rise towers
containing 800 luxury rentals and more than 200 affordable
units. The City Planning Commission blessed this project with
a building permit issued on August 21, 2013.
prevent their works' destruction, Cohen and other artists
sued the defendants on October 10, 2013. As in their two
later pleadings, the plaintiffs then asserted not only VARA
claims but also common law tort claims. With the complaint,
the plaintiffs filed a motion for a preliminary injunction.
On October 17, 2013, the Court issued a temporary restraining
order, and on November 12, 2013, denied their request for
injunctive relief. On June 17, 2014, the plaintiffs filed the
Cohen Complaint. In it, four claims are pled: (1)
VARA, (2) intentional infliction of emotional distress
(“IIED”), (3) conversion, and (4) property
damage. Cohen Compl. ¶¶ 191-210. The
defendants responded with an answer and counterclaim for
abuse of process. Discovery commenced, and these motions
3, 2015, Maria Castillo and other artists
(“Castillo Plaintiffs”) initiated a
separate lawsuit against the defendants
(“Castillo Matter”). As here, the
Castillo Plaintiffs adduce the same four claims in
their pleadings. And, as here, they and the defendants filed
motions for summary judgment raising the same substantive
arguments, now addressed by the Court.
A. Plaintiffs' VARA Claims
1. Existence of Genuine Dispute
“[A]s [the] defendants' expert correctly [and
previously] acknowledged, VARA protects even temporary works
from destruction.” Cohen, 988 F.Supp.2d at
227; cf. Mass. Museum of Contemporary Art Found., Inc. v.
Buchel, 593 F.3d 38, 51 (1st Cir. 2010) (noting that,
while “[t]he text of VARA itself does not state when an
artistic project becomes a work of visual art subject to its
protections, ” VARA protects certain
“unfinished” works of art).
even if a piece of art encompassed by VARA is destroyed, VARA
provides that “monetary damages may be awarded”
if “it is ultimately determined after trial that the
plaintiffs' works were of ‘recognized
stature.'” Cohen, 988 F.Supp.2d at 227;
see also Pollara v. Seymour, 150 F.Supp.2d 393, 399
n.9, n.10 (N.D.N.Y. 2001) (holding that, if VARA applied,
damages would be owed).
appropriate level of damages is set in the more general
provisions of the Copyright Act (“Act”), which
authorize either statutory or actual damages. 17 U.S.C. §
504(b), (c)(1) (setting forth relevant standards); H.R. Rep.
No. 101-514, at (1990) (noting that VARA “makes all
title 17 remedies (excluding the criminal sanctions provided
by section 506) available to those authors, ” including
“monetary damages”). Though statutorily
undefined, “‘[r]ecognized stature' is a
necessary finding under VARA in order to protect a work of
visual art.” Martin v. City of Indianapolis,
192 F.3d 608, 612 (7th Cir. 1999). To make this requisite
showing, “plaintiffs generally, but not inevitably,
will need to call expert witnesses to testify before the
trier of fact.” Carter v. Helmsley-Spear,
Inc., 861 F.Supp. 303, 325 (S.D.N.Y. 1994). Naturally,
defendants often respond with their own experts. Cf.
Scott v. Dixon, 309 F.Supp.2d 395, 400 (E.D.N.Y. 2004)
(“The stature of a work of art is generally established
through expert testimony.”); Phillips v. Pembroke
Real Estate, Inc., 288 F.Supp.2d 89, 97 (D. Mass. 2003)
(noting that courts “generally” determine whether
a particular work possessed “recognized statute”
based on expert testimony); Pollara v. Seymour, 206
F.Supp.2d 333, 336 (N.D.N.Y. ...