March 26, 2020
Headlines emphasized the $6.75 million dollar damages award in the Second Circuit’s recent decision in Castillo v. G&M Realty LP. However, the primary significance of the case is that it establishes a test that is highly deferential to experts for when a work of visual art has achieved “recognized stature” — and thus merits protection from destruction under the Visual Artists Rights Act (“VARA,” 17 U.S.C. § 106A).
In short, under the Second Circuit’s test, a work is of recognized stature when a community of art experts says it is. Although this paraphrasing of the court’s holding may seem cynical, it is in accord with some contemporary theories of art. For example, the institutional theory of art, as espoused by Arthur Danto among others, holds that in the contemporary context, only a community of art professionals, or an “artworld,” is capable of determining what is art and what is not. See Arthur Danto, “The Artworld,” The Journal of Philosophy, Vol. 61, No. 19, pp. 571-584. The Second Circuit held that a work is of recognized stature when it is of “high quality, status, or caliber that has been acknowledged as such by a relevant community,” that is, “art historians, art critics, museum curators, gallerists, prominent artists, and other experts.”
THE STANDARD FOR ESTABLISHING RECOGNIZED STATURE
In practice, the Second Circuit’s holding means that courts will require “expert testimony or substantial evidence of non-expert recognition” to prove recognized stature in all but the most exceptional cases. The Second Circuit also states in dicta that the reputation of the artist alone may be dispositive in some cases, since “even a ‘poor’ work by a highly regarded artist — e.g., anything by Monet — ” may merit protection under VARA.
The court leaves open the possibility for a “rare case where an artist or work is of such prominence that the issue of recognized stature need not be tried.” It is worth considering what would count here. Presumably, da Vinci’s Mona Lisa would qualify as a favorite of experts and the hoi polloi alike. But what about Hans Holbein the Younger’s The Ambassadors, a universally acknowledged masterpiece by one of the most important painters of the Northern Renaissance that is less well-known among the general populace? Or Chris Ofili’s The Holy Virgin Mary , whose elephant-dung elements helped it achieve international notoriety and resulted in New York City cutting off funding for the Brooklyn Museum? And what about Maurizio Cattelan’s Comedian, a banana duct taped to a wall that so beguiled Art Basel Miami Beach 2019 that Emmanuel Perrotin decided to stop displaying it? (In the latter case, what would be protected against destruction? The banana (which, incidentally, another artist ate without permission), or the certificate (which could be replaced at nominal cost as long as the artist survives)?)
VARA APPLIES TO TEMPORARY WORKS
The decision is also important for its holding that temporary works slated for destruction may nevertheless be protected by VARA. As a helpful example, the court cites Christo and Jeanne-Claude’s The Gates (2005), whose billowing orange nylon became an instant icon during its two-week run.
THE RELEVANT FACTS
At issue in Castillo was whether the plaintiffs’ spray-painted murals at 5Pointz — the former graffiti art Mecca in Long Island City, New York — were works of recognized stature protected from destruction under VARA. (See 17 USC § 106A(a)(3)(B).) Defendant Gerald Wolkoff, owner and developer of 5Pointz, destroyed the murals by whitewashing them the same night that the district court denied the plaintiffs’ motion for preliminary relief to enjoin such destruction. Even more shockingly, the district court had denied the motion in part because Wolkoff materially misrepresented how urgently he needed to demolish the site: Wolkoff did not even apply for a demolition permit until four months after the whitewashing. Wolkoff expressed no remorse for his conduct, stating that he “would make the same decision today.”
WHY THE LARGE AWARD IS NOT SURPRISING
Despite its headline grabbing nature, because Wolkoff’s destruction was so brazen, the large damages award is likely of less consequence in terms of the developing VARA jurisprudence. The award was merely the product of the maximum statutory damages award for willfully violating VARA ($150,000 per work) and the 45 works at issue.
The Second Circuit reviewed the district court’s finding of willfulness for clear error and its determination of statutory damages for abuse of discretion. Given these deferential standards of review and Wolkoff’s egregious behavior, it is little surprise that the court upheld the district court’s maximum statutory damages award for all works in question.
RELEVANT EVIDENCE FOR DETERMINING RECOGNIZED STATURE
To support shifting the responsibility for determining which works of art are of recognized stature to the artworld, the court quotes Justice Holmes’s chestnut cautioning courts against being the final arbiters of a work of art’s worth. The court then cites the voluminous evidence proffered by the plaintiffs to show why the works of art in question were important.
Although this analysis offers helpful tips on what constitutes evidence for determining recognized stature, the Second Circuit offers no insight into how a defendant might rebut such evidence. We surmise that a defendant might consider relying on published reviews from art critics panning the work in question, although any attention — even negative attention — may serve to justify a work’s importance. Historical examples abound, e.g., Louis Vauxcelles disparaging Matisse and his comrades as wild beasts (“fauves”) and Louis Leroy sneering at Monet’s “innumerable black tongue-lickings.” Survey evidence also might persuasively show that the relevant public is unaware of the work, but surveys are expensive and designing one to show that the relevant public knows little to nothing about a work might be difficult.
In dismissing the defendant’s objections to the district court’s finding of recognized stature — which the Court of Appeals reviewed for clear error — the court makes several noteworthy holdings. First, it sensibly rejects defendant’s argument that the plaintiffs’ expert had not seen the works in person but instead relied on photographs; in cases where works have been destroyed, such reliance may be unavoidable. (That said, one wonders why the plaintiff in this case couldn’t find an expert who had actually seen the works in person if they were of such high quality, stature or caliber.) Second, the court holds that the status of the curator who chooses to display the work is relevant even if the work did not exist when the curator selected the artist, and especially if the artist first provides a plan for the work. Finally, the court holds that the context of the work is relevant. In doing so, the Second Circuit rejected the defendants’ argument that the district court relied on the status of 5Pointz instead of the status of the works themselves.
LESSONS FOR REAL ESTATE OWNERS
The court also provides several helpful lessons for real estate owners who are confronted with the need to destroy works of visual art installed on their premises. In upholding the district court’s finding that Wolkoff acted willfully, the court notes that Wolkoff could have avoided this dispute if he had waited 90 days after notifying the artists of his intent to destroy the work. But he failed to do so even though he had the advice of counsel before he whitewashed the works. (Lesson #1: Be patient.) In upholding the district court’s assessment of statutory damages, the court notes that Wolkoff did a half-hearted job of destroying the works, leaving them “easily visible under layers of cheap white paint.” (Lesson #2: Counterintuitively: destroy thoroughly.) The court also considers Wolkoff’s failure to show remorse in finding that the potential deterrent effect on the infringer and third parties justifies the maximum award of statutory damages. (Lesson #3: Show contrition.) Finally, the court finds that Wolkoff’s misconduct supports the award, pointing to his material misrepresentations to the court. (Lesson #4: Don’t lie to the court.)
POOR EVIDENCE OF ART’S MARKET VALUE IS NO BAR FOR MAXIMUM STATUTORY DAMAGES
The court also provides one noteworthy lesson for artists when considering the lost revenue prong of the statutory damages assessment, namely, that the artists’ limited sales history is no barrier to awarding the maximum statutory damages award.
CRUCIAL PRACTICE TAKEAWAY: AGREE IN WRITING BEFORE ART IS INSTALLED
In the end, perhaps the most important lesson for real estate owners and artists alike is that they should enter into an agreement defining the parties’ respective rights and obligations before works of art are even installed.
Full text of Castillo v. G&M Realty LP.
Author: Dave Steiner
Post-Script: On March 5, 2020, the defendants filed to stay the Second Circuit’s judgment so they can petition the Supreme Court for certiorari.