How artists graffitied one man’s property, made it famous, sued him when he knocked it down – and won $6.7m

The factory in Queens, New York City, where graffiti artists can express themselves legally. Image: Nigel Morris/Flickr/creative commons.

It’s an extraordinary tale with a whiff of Banksy about it, although surprisingly, he was not involved. In a landmark ruling, 21 New York street artists have sued and won $6.7m in damages from the owner of a building who destroyed their graffiti when he had the building demolished.

Following a three-week trial in November, on 12 February, Judge Frederic Block ruled against Jerry Wolkoff, owner of the 5Pointz complex in Queens, conferring the biggest award of $1.3m on the building’s mastermind-curator, graffiti artist Meres One, real name Jonathan Cohen.

5Pointz mastermind Jonathan Cohen, aka Meres One, who won $1.3m in the landmark court ruling. Image: Thee Erin/Flickr/creative commons.

The demolition of the former factory site turned graffiti mecca began in August 2014. The year before, artists had tried to oppose the warehouse’s destruction, but an attempt to win an injunction to prevent the owner from knocking it down was unsuccessful.


In the 1990s, Wolkoff had agreed to allow the derelict factory to be used as a showcase for local graffiti talent. Called the Phun Factory, it was later renamed 5Pointz by Meres One in 2002. Under the artist’s watchful eye, it evolved into an “aerosol art centre” and became famous the world over, a huge draw for graffiti aficionados and tourists alike.

In the end, Wolkoff profited from the graffiti and its destruction, when the value of the complex went up from $40m to $200m and permission to build luxury condos was obtained. Destroying 5Pointz, the judge stressed, permitted Wolkoff to realise that value.

Proper works of art

Judge Block accepted that 45 artworks at the centre of the case had “recognised stature” and must receive protection under the Visual Artists Rights Act (VARA), a piece of legislation which was introduced in the US in 1990 to protect artists’ moral rights – but has rarely been applied in their favour.

Credit: Kevin Wood/YouTube.

The rationale used by the court to confirm these artworks were of merit was crucial. To be considered such, works of art don’t need to be mentioned in academic publications or be considered masterpieces, as the expert for the property owner had argued.

It was enough, the judge said, for the 5Pointz artists to show their professional achievements in terms of residences, teaching positions, fellowships, public and private commissions as well as media coverage and social media presence.

Judge Block also carefully examined Wolkoff’s behaviour. The artworks – even those that could be easily removed as they had been placed on plywood panels – were whitewashed prior to demolition without giving artists the 90-day notice required by VARA. And the owner did so, the judge stressed, while conscious of the fact the artists were pursuing a VARA-based legal action. Such behaviour, the judge concluded, was not acceptable.

Such blatant disregard for an important legal provision pushed the judge to award the artists the maximum amount of damages allowable under the law. And although he did not grant the injunction requested by the artists in 2013, the judge had warned Wolkoff that he would be exposed to potentially high damages if the artworks were finally considered of “recognised stature”, as they were by the 12 February ruling.

5Pointz drew street art aficionados from all over the world with its wildly imaginative and inventive graffiti. Image: Paxti Moraleda/Flickr/creative commons.

The court also took into account that 5Pointz had become an attraction for visitors to New York, with busloads of tourists, schoolchildren and even weddings heading to the site. Also thanks to Meres One’s savvy stewardship for more than a decade, not only was the complex painted regularly by talented graffiti artists from all over the world, 5Pointz also attracted movie producers, advertising companies and bands, and was used as a location for the climax for the 2013 film Now You See Me.

The judge did not attach much importance to the fact that several artworks at 5Pointz were not meant to be permanent, an argument that had also been relied on by Wolkoff to claim that the pieces could not be protected. But the court reminded him that VARA protects both permanent and temporary art. This is an important provision of the law, especially when all that makes a work transient is the site owner’s expressed intention to remove it.

Art v property

This ruling may well embolden other graffiti artists to sue property owners who destroy artworks without following the correct procedure, even beyond the US. It may also make owners of buildings whose walls host graffiti more careful. Most important, the huge amount of damages awarded in this case will convince many that ignoring legal provisions and disregarding legitimate graffiti art is not a good idea. Judge Block made clear he awarded the maximum penalty allowable to deter other building owners from behaving in the same disrespectful way as Wolkoff.

5Pointz in Queens was an old factory that was turned into an aerosol art centre. Image: P Lindgren/creative commons.

Finally, the decision clearly marks the evolution of graffiti and street art, long considered to be temporary or transient artforms. It is now clear that artistic movements such as these aim to become more permanent forms of art, and that they have achieved a status similar to the one traditionally held by works of “fine art”.

The ConversationSo the gap between “street art” and “fine art” is narrowing. As 5Pointz curator Meres One put it: “This case will probably change the way art is perceived for generations to come.”

Enrico Bonadio, Senior Lecturer in Law, City, University of London.

This article was originally published on The Conversation. Read the original article.

 
 
 
 

In South Africa's cities, evictions are happening despite a national ban

An aerial view shows a destroyed house in Lawley, south of Johannesburg, on April 20, 2020. The city has been demolishing informal structures on vacant land despite a moratorium on evictions. (Marco Longari/AFP via Getty Images)

On the morning of 15 July, a South African High Court judge ruled that the city of Cape Town’s Anti-Land Invasion Unit had illegally evicted a man when it destroyed the shack where he was living.

That afternoon, the Anti-Land Invasion Unit was out again, removing shacks in another informal settlement.

Evictions were banned in South Africa for nine weeks, after the national government placed the country under a strict Covid-19 lockdown in late March. At present, eviction orders are automatically suspended until the country moves to a lower “alert level” and can only be carried out with a special order from a judge.

Yet major cities including Cape Town, Johannesburg and eThekwini (created through the merger of Durban with several surrounding communities), have continued to use municipal law enforcement agencies and private security companies to remove people from informal housing. In many cases those operations have been conducted without a court order – something required under regular South African law.

Around 900 people were evicted from three informal settlements in eThekwini during the eviction ban, according to the Church Land Programme, a local NGO. Its director, Graham Philpott, says it’s also aware of evictions in other informal settlements.

While evictions aren’t a “new experience” in these communities, the NGO released a report on lockdown evictions because they were “so explicitly illegal”. “There was a moratorium in place,” Philpott says, “and the local municipality acted quite flagrantly against it. There’s no confusion, there’s no doubt whatsoever, it is illegal. But it is part of a trend where the eThekwini municipality has acted illegally in evicting the poor from informal settlements.”

Evictions also took place in Cape Town and Johannesburg during so-called “hard lockdown” according to local activists. In eThekwini and other municipalities, the evictions have continued despite restrictions. In Cape Town, authorities pulled a naked man, Bulelani Qholani, from his shack. That incident, which was captured on video, drew condemnation from the national government and four members of the Anti-Land Invasion unit were suspended. 


The cities say they’re fighting “land invasions” – illegal occupations without permission from the land owner.

“Land invasions derail housing and service projects, lead to the pollution of waterways, severely prejudice deserving housing beneficiaries and cause property owners to lose their investments over night,” Cape Town’s executive mayor, Dan Plato said in a statement. (Plato has also claimed that Qholani did not live in the shack he was pulled from and that he disrobed when municipal authorities arrived.)

South African municipalities often claim that the shacks they destroy are unoccupied. 

If they were occupied, says Msawakhe Mayisela, a spokesman for the eThekwini municipality, the city would get a court order before conducting an eviction. “Everything we’re doing is within the ambit of the law,” Mayisela says. But “rogue elements” are taking advantage of Covid-19, he added.

“We fully understand that people are desperately in need of land, but the number of people that are flocking to the cities is too much, the city won’t be able to provide housing or accommodation for everyone overnight,” he says. 

While eThekwini claims to be a caring city, local activists say the evictions show otherwise.

In one case, 29 women were evicted from shacks during the hard lockdown. With nowhere to go, they slept in an open field and were arrested by the South African Police Service for violating the lockdown, Philpott says.

“These evictions are dehumanizing people whose dignity is already compromised in many ways,” says S’bu Zikode, the president of Abahlali baseMjondolo, a community organization whose Zulu name translates to “the people of the shacks”. 

“It has reminded us that we are the people that do not count in our society.”

Municipal law enforcement and private security contractors hired by cities regularly fire rubber bullets, or even live ammunition, at residents during evictions. Some 18 Abahlali baseMjondolo activists have been killed since the organization was founded in 2005, Zikode says, most by the eThekwini Land Invasion Unit and Metro Police.

(Mayisela says that if city employees have broken the law, Abahlali baseMjondolo can file a complaint with the police. “There is no conclusive evidence to the effect that our members have killed them,”  he says.)

Other Abahlali baseMjondolo activists have been killed by what Zikode calls “izinkabi,” hitmen hired by politicians. Two eThekwini city councillors were sentenced to life in prison 2016 after they organized the killing of Thuli Ndlovu, an Abahlali baseMjondolo organizer. A member of the Land Invasion Unit who is currently facing a charge of attempted murder after severely injuring a person during an eviction remains on the job, Zikode says.

South Africa’s 1996 constitution is intended to protect the public from arbitrary state violence and guarantees a right to housing, as well as due process in evictions. But for Zikode, the South African constitution is a “beautiful document on a shelf”.

“For the working class and the poor, it’s still difficult to have access to court. You’ve got to have money to get to court,” he says. 

The actions by municipal law enforcement are breaking down social trust, says Buhle Booi, a member of the Khayelitsha Community Action Network, a community group in the largest township in Cape Town.

“There’s a lack of police resources and those very few police resources that they have, they use to destroy people’s homes, to destroy people’s peace, rather than fighting crime, real criminal elements that we see in our society,” Booi says.

For him, it’s a continuation of the practices of the colonial and apartheid governments, pushing poor people, most of whom are Black, to the periphery of cities.

Around one-fifth of South Africa’s urban population live in shacks or informal dwellings, according to a 2018 report by SERI. Many more live in substandard housing. City governments maintain that the shacks destroyed during anti-land invasion operations are unfinished and unoccupied. But Edward Molopi, a research and advocacy officer at SERI, says that this claim is an attempt to escape their legal obligations to get a court order and to find alternative accommodation for affected people. 

The roots of the current eviction crisis go back to apartheid, which barred non-white people from living in cities. Between the 1940s and 1970s, tens of thousands of people were forcibly relocated from neighbourhoods like Johannesburg’s Sophiatown and Cape Town’s District Six to remote townships.

In the 26 years following the end of apartheid, deepening economic inequality and rampant unemployment have limited access to formal housing for millions of South Africans. Government housing programs have mostly focused on building small stand-alone homes, often on the peripheries of cities far from jobs and amenities.

While these well-intentioned projects have built millions of homes, they’ve failed to keep up with demand, says Marie Huchzermeyer, a professor at the Centre for Urbanism & Built Environment Studies at the University of the Witwatersrand in Johannesburg. Government-funded housing projects “will never on it’s own be enough,” she says. “It has to be accompanied by land release.”

Government policies call for the “upgrading” of informal settlements and the formalization of residents’ occupation. But “there are still very, very, very few projects” of that nature in South Africa, Huchzermeyer says. “Even if it’s an informal settlement that’s been around for 20 years, there still seems to be a political wish to punish people for having done that.” The government wants people to go through the formal process of being given a house, she says – and for them to be thankful to the government for providing it.

At the municipal level, change will require “real leadership around informal settlement upgrading and around ensuring that land is available for people to occupy,” she says. 

Despite the end of enforced racial segregation, spacial apartheid remains a factor in South Africa. There are few mixed-income neighbourhoods. Those who can afford to often live behind walls in sprawling low-density suburbs, while the poor live in overcrowded slums and apartment buildings.

The creation of the apartheid city “didn't happen by chance,” says Amira Osman, a professor of architecture at the Tshwane University of Technology. “It was a deliberate, structured approach to the design of the city. We need a deliberate, structured approach that will undo that.”

Since last fall, Johannesburg’s Inclusionary Housing Policy has required developments of 20 or more units to set aside 30% of those units for low-income housing.

The policy, which faced significant opposition from private developers, won’t lead to dramatic change, says Sarah Charlton, a professor at the Centre for Urbanism and Built Environment Studies, but it is “an important and significant step.”

Zikode isn’t optimistic that change will come for shack dwellers, however.

“People in the high positions of authority pretend that everything is normal,” he says. “They pretend that everyone is treated justly, they pretend that everyone has homes with running water, that everyone has a piece of land – and hide the truth and the lies of our democracy.”

Jacob Serebrin is a freelance journalist currently based in Johannesburg. Follow him on Twitter.