Castillo v. G&M Realty L.P., 950 F.3d 155

5Pointz: a Long Island City warehouse complex curated by aerosol artist Jonathan Cohen where hundreds-to-thousands of aerosol works (some short‑lived, some long‑standing) were painted and publicly displayed.
Wolkoff, the property owner/developer, sought municipal approvals to demolish 5Pointz and build condos; artists sought landmark status and tried to buy the site without success.
Plaintiffs sued under the Visual Artists Rights Act (VARA) to prevent destruction; after a TRO and a denied preliminary injunction, Wolkoff barred artists and ordered workers to whitewash the murals overnight.
At bench/advisory‑jury trial the court found 45 works had achieved "recognized stature," that Wolkoff willfully destroyed them, and declined to award actual damages because market value could not be reliably fixed.
The district court awarded maximum statutory damages—$150,000 per work—for a total of $6.75 million; Wolkoff appealed.
The Second Circuit affirmed: temporary street art may attain "recognized stature," the 5Pointz works qualified, the destruction was willful, and the statutory award was not an abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can temporary artwork achieve "recognized stature" under VARA?	Yes — recognition by the art community, not permanence, controls.	No — temporary/transitory works cannot meet the statute's stature requirement.	Temporary works can attain recognized stature; permanence is not a statutory prerequisite.
Did the 5Pointz works have recognized stature?	Yes — expert testimony, Cohen's curation, media attention, and site prominence established recognition for many works.	No — much work was temporary, some artists lacked sales history, expert testimony was based on images or post‑destruction.	The district court's factual finding that 45 works achieved recognized stature was not clearly erroneous.
Was the destruction willful (warranting enhanced statutory damages)?	Yes — Wolkoff knew of VARA claims, declined the 90‑day notice/removal option, and destroyed the works deliberately.	No — whitewashing was to prevent disorder or was compelled by demolition urgency.	Willfulness was supported by record; court found deliberate, knowing violation.
Was the $150,000 per‑work statutory award an abuse of discretion?	High statutory damages appropriate to punish, deter, and vindicate VARA given willfulness and conduct.	Excessive; actual damages were not awarded, and statutory maximum is disproportionate.	No abuse of discretion: court applied relevant factors and reasonably imposed maximum statutory damages.

Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) (articulates VARA's moral‑rights framework, including rights of attribution and integrity)
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (U.S. 1903) (warning against courts acting as final judges of artistic worth)
Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999) (recognition that community acknowledgment informs "recognized stature")
Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003) (caution in assessing artistic value and recognition)
Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (discusses "fixed" requirement and transitory duration under copyright)
Bryant v. Media Right Prods., Inc., 603 F.3d 135 (2d Cir. 2010) (standard for willfulness and review of statutory damages)
Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620 (2d Cir. 2018) (standards for reviewing statutory damages for abuse of discretion)
United States v. U.S. Gypsum Co., 333 U.S. 364 (U.S. 1948) (defines "clear error" standard for factual findings)