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Is graffiti federally protected art? Jury weighs the 5Pointz case

LONG ISLAND CITY, Queens — If somebody intentionally damages something, are they liable to compensate the creator of the damaged item, even if the person who did the damage owns the property on which the damaged item sits, and may even have full rights to the item?

These are some of the questions a jury is being asked to consider in the trial of the artists of the 5Pointz graffiti art displays versus the owner of the property on which the art -- which is also called aerosol art -- was exhibited.

5Pointz was the name given to warehouse buildings next to the 7-train elevated line at Davis Street here, where some of the most prominent aerosol artists in the world would display their work to the world. A typical panel of the graffiti art was 14 feet tall and 90 to 100 feet wide, and was highly visible from passing subway trains.

It became a world-renowned tourist draw and aerosol art treasure. Each piece would be displayed for weeks or months at a time, depending on a schedule cooperatively set up by the artists and the de facto curator of the site, the artist known as MearsOne, himself one of the most sought after aerosol painters in the world.

The buildings on the site were owned developer Jerry Wolkoff. In 1993, he allowed graffiti artists to display on his building, essentially for as long as the buildings remained in place. Over the course of the next 20 years, some 11,000 works of aerosol art were created, displayed and then painted over with new artworks.

In 2014, however, Wolkoff painted over all of the artworks, with whitewash, in an overnight removal that was the first step in a process to build 40-story condos on his property.

Now, 21 of the aerosol artists are suing Wolkoff, seeking compensation for his removal of their work -- which is highly regarded in the art world -- without warning or consent.

The artists' attorney is arguing that their work is protected by a federal legal provision called the Visual Artists Rights Act, or VARA.

It will be up to a six-person jury of the artists' peers to decide whether or not VARA rules entitle the artists to be compensated.

According to Marvyn Kornberg, the legendary, five-decade veteran trial attorney from Queens, succeeding will be very difficult, unless the plaintiffs can prove one thing. "That they knew they would get some sort of compensation," Kornberg told PIX11 News.

Proving that, based on the facts of the case, he said, is challenging. "They don't have a lien on the building forever," said Kornberg, adding that the artists never obtained a contract or anything in writing "saying 'Pay us x-amount of dollars. They didn't do that."

Ultimately, it will be up to the jury to decide, after hearing the case in detail. Twenty of the artists are expected to testify. So far, two of them have taken the witness stand.