Castillo v. G&M Realty L.P.

Case Information

18 ‐ 498 ‐ cv (L)

Castillo v. G&M Realty L.P.

In the

United States Court of Appeals

For the Second Circuit August Term 2019

Nos. 18 ‐ 498 ‐ cv (L), 18 ‐ 538 ‐ cv (CON)

M ARIA C ASTILLO , J AMES C OCHRAN , L UIS G OMEZ , B IENBENIDO G UERRA , R ICHARD

M ILLER , C ARLO N IEVA , K ENJI T AKABAYASHI , N ICHOLAI K HAN , Plaintiffs ‐ Appellees , J ONATHAN C OHEN , S ANDRA F ABARA , L UIS L AMBOY , E STEBAN D EL V ALLE , R ODRIGO

H ENTER D E R EZENDE , W ILLIAM T RAMONTOZZI , J R ., T HOMAS L UCERO , A KIKO M IYAKAMI , C HRISTIAN C ORTES , C ARLOS G AME , J AMES R OCCO , S TEVEN L EW , F RANCISCO F ERNANDEZ ,

Plaintiffs ‐ Counter ‐ Defendants ‐ Appellees , K AI N IEDERHAUSEN , R ODNEY R ODRIGUEZ ,

Plaintiffs , G&M R EALTY L.P., ‐ J ACKSON A VENUE O WNERS , L.P., 22 ‐ 52 J ACKSON A VENUE

LLC, ACD C ITIVIEW B UILDINGS LLC, G ERALD W OLKOFF Defendants ‐ Appellants.

Appeal United States District Court Eastern District New York Nos. cv ‐ (FB) (RLM), ‐ cv ‐ (FB) (RLM), Frederic Block, District Judge, Presiding.

(Argued August 2019; Decided February 2020) Before: PARKER, RAGGI, LOHIER, Circuit Judges .

Defendants ‐ Appellants are developers who destroyed aerosol artwork that Plaintiffs ‐ Appellees had painted on buildings owned Defendants ‐ Appellants. They appeal from judgment United States District Court for Eastern District New York (Block, J. ) awarding statutory damages Plaintiffs ‐ Appellees under Visual Artists Rights Act (“VARA”). We hold district correctly determined temporary may achieve so be protected destruction VARA Plaintiffs ‐ Appellees’ achieved stature. We also hold district err finding Defendants ‐ Appellants’ violations willful court’s award statutory abuse discretion. Accordingly, judgment

AFFIRMED.

E RIC M. B AUM (Juyoun Han, Eisenberg & Baum, LLP, New York, NY, Christopher J. Robinson, Rottenberg Lipman Rich, P.C., New York, NY, on brief ), Eisenberg & Baum, LLP, New York, NY, Plaintiffs ‐ Appellees . M EIR F EDER (James M. Gross, brief ), Jones Day, New York, NY, Defendants ‐ Appellants .

BARRINGTON D. PARKER, Circuit Judge:

Defendants ‐ Appellants G&M Realty L.P., ‐ Jackson Avenue Owners, L.P., Jackson Avenue LLC, ACD Citiview Buildings, LLC, Gerald Wolkoff (collectively “Wolkoff”) appeal judgment United States District Court for Eastern District New York (Frederic Block, J. ). concluded Wolkoff violated Visual Artists Rights Act U.S.C. 106A (“VARA”), by destroying artwork Plaintiffs Appellees, artists who created displayed site in Long Island City, New York. We hold correctly concluded artwork created Appellees protected by Wolkoff’s violation statute willful. Furthermore, awarded involved no abuse discretion. Accordingly, we affirm judgment below. facts as found established in Wolkoff

undertook install series dilapidated warehouse buildings he owned Long Island City, New York. enlisted Appellee Jonathan Cohen, distinguished aerosol artist, turn warehouses into exhibition space artists. Cohen rented studio spaces warehouses filled walls with aerosol art, with Cohen serving as curator. Under Cohen’s leadership, site, known 5Pointz, evolved into major global center aerosol art. It attracted thousands daily visitors, numerous celebrities, extensive media coverage.

“Creative destruction” was important feature 5Pointz site. Some site achieved permanence, but art had short lifespan was repeatedly painted over. An elaborate system norms—including Cohen’s permission often consent artist whose was overpainted— governed painting process. Cohen divided walls into “short term rotating walls,” where works generally last days weeks, “longstanding walls,” which were more permanent reserved best works site. During lifespan, 5Pointz home to total approximately 10,650 art.

In May Cohen learned sought municipal approvals looking to demolish 5Pointz to build luxury apartments site. Seeking to prevent destruction, Cohen applied to New York City Landmark Preservation Commission 5Pointz designated site cultural significance. application unsuccessful, Cohen’s efforts raise money purchase site.

At point, Cohen, joined numerous artists, sued under prevent destruction site. VARA, added copyright laws grants visual certain “moral rights” work. See U.S.C. 106A(a). Specifically, statute prevents modifications are harmful artists’ reputations. Id. § 106A(a)(3)(A). statute also affords artists right prevent destruction work if work has achieved “recognized stature” carries over protection even after work sold. Id. 106A(a)(3)(B). Under §§ 504(b) (c) artist who establishes a violation may obtain actual profits statutory damages, which are enhanced if artist proves a violation willful.

Early litigation, Plaintiffs applied a temporary restraining order prevent demolition site, which granted. See Cohen G&M Realty L.P. F. Supp. 2d 212, n.1 (E.D.N.Y. 2013). As TRO expired, Plaintiffs applied preliminary injunction. On November denied application minute order but told parties written opinion soon follow. See id.

That night, Wolkoff began destroy artwork. He banned site refused them permission recover any could removed. Several nights later (and before court’s written opinion could issue), deployed group workmen who, instruction, whitewashed art.

On November 20, 2013, the issued its opinion denying the preliminary injunction. Judge Block concluded that, although some paintings may achieved recognized stature, resolution question best reserved trial. The also decided that, given transitory nature much work, preliminary injunctive relief inappropriate monetary available under VARA could remediate any injury proved trial.

Following destruction art, nine additional sued Wolkoff. two lawsuits were consolidated trial, which primarily address whether had achieved recognized and, if it had, value destroyed. three week trial included testimony witnesses saw admission voluminous documentary evidence.

Although Plaintiffs had initially demanded trial jury, near conclusion trial, parties agreed waive jury, converted advisory jury. On November advisory jury returned verdict. It made individualized findings as each artist found violations works whitewashed. More precisely, advisory jury found achieved and had been unlawfully destroyed and other works had been mutilated distorted detriment of the artists’ reputations. It recommended award of $545,750 actual and $651,750 in statutory damages.

On February court issued findings of fact and conclusions law. Drawing on vast record, found works had achieved stature, had violated destroying them, violation willful. More specifically, observed works “reflect[ed] striking technical artistic mastery vision worthy display prominent museums if on walls 5Pointz.” S. App’x findings emphasized Cohen’s prominence world aerosol art, significance process selecting who could exhibit 5Pointz, fact that, while much temporary, works were display several years. Judge Block credited artists’ evidence outside recognition works expert testimony works’ stature. declined impose liability with respect four remaining because they achieved long term preservation, insufficiently discussed outside 5Pointz, and not modified to detriment artists’ reputations.

Where a violation established, statute permits injured party to recover either actual damages and profits statutory damages. U.S.C. § statute fixes statutory damages between $750 $30,000 per but authorizes up to $150,000 per work if a litigant proves that a violation “willful.” Id. 504(c). There was extensive expert testimony actual damages. Elizabeth Littlejohn, artists’ expert, testified that each works question substantial monetary value, employing complex formula attempted scale that value account relative merit recognition each work. On hand, Christopher Gaillard, Wolkoff’s expert, testified that, given difficulties removing selling 5Pointz paintings artists’ limited sales history, destroyed reliable market value. Ultimately, concluded could reliably fix market value destroyed paintings and, reason, declined award actual damages. said Littlejohn’s formula flawed Gaillard credibly testified challenges impede calculation market value.

Nonetheless, the award statutory damages. It determined statutory serve to sanction Wolkoff’s conduct and to vindicate the policies behind VARA. In addition, and in accord with the advisory jury’s verdict, the found Wolkoff acted willfully. This finding was based Wolkoff’s awareness of the ongoing litigation and refusal to afford artists day opportunity provided statute to salvage their artwork, some which removable. See U.S.C. 113(d)(2)(B). Judge Block unpersuaded Wolkoff’s assertion he whitewashed to prevent engaging in disruption disorderly behavior site. Instead, he found acted out “pure pique revenge for nerve plaintiffs sue to attempt to prevent destruction art.” S. App’x Judge Block awarded maximum amount statutory damages: $150,000 each works, total $6.75 million.

Appellants then moved, pursuant Fed. R. Civ. P. 52(b) 59(a), set aside court’s findings fact conclusions law retry case. denied motion and, lengthy appendix, marshalled evidence record supporting court’s findings each question. also offered additional support for its finding of willfulness. The concluded Wolkoff’s affidavit testimony submitted during preliminary injunction proceedings contained material untruths. Wolkoff’s affidavit stated demolition had be completed beginning with construction commence April 2014. At trial, however, Wolkoff testified he apply for demolition permit until March district stated granted preliminary injunction testified earlier demolition could be delayed until March. This appeal followed.

DISCUSSION

In reviewing court’s decision bench trial, we review court’s findings fact clear error conclusions law de novo . Mixed questions law fact are also reviewed de novo . White v. White Rose Food (2d Cir. 2001).

I. creates scheme moral rights artists. “The right attribution

generally consists right artist name author publish anonymously or pseudonymously . . . .” Carter Helmsley Spear, Inc. , 71 F.3d 81 (2d Cir. 1995). It further includes right to prevent artist’s work from being attributed another prevent use of artist’s name on created others. Id. “The right of integrity allows [artist] prevent any deforming or mutilating changes his work, even after title work has been transferred.” Id. ^[1]

Most importantly appeal, VARA gives “the author of a work of visual art” right “to prevent any destruction of a work of stature” provides that “any intentional or grossly negligent destruction that work violation right.” U.S.C. § 106A(a)(3)(B); see also Carter F.3d 83. further permits artist “to prevent any intentional distortion, mutilation, or modification [his or her work] which be prejudicial his or her honor or reputation,” provides “any intentional distortion, mutilation, or modification work violation right.” U.S.C. 106A(a)(3)(A). latter provision applies regardless work’s stature. These rights may be transferred, but they “may be waived if author expressly agrees to such waiver a written instrument signed by the author.” Id. § 106A(e)(1).

Additionally, the statute contains specific provisions governing artwork incorporated into a building. If the incorporated “in such a way removing the work from the building will cause the destruction, distortion, mutilation, or other modification work,” then artist’s rights may be waived if only if he “consented installation work building . . . a written instrument.” Id. § 113(d)(1). This instrument must be “signed owner building author” must “specif[y] installation work may subject work destruction, distortion, mutilation, or other modification, reason its removal.” Id. However, “[i]f owner building wishes remove visual which part such building which can removed building without destruction, distortion, mutilation, modification work,” then artist’s rights prevail unless one two things has occurred. Id. 113(d)(2). First, building’s owner “has made diligent, good faith attempt without success notify author of owner’s intended action affecting work of visual art.” Id. Or second, owner has “provide[d] such notice in writing person so notified failed, within days after receiving such notice, either remove work or pay its removal.” Id.

Damages violations VARA’s rights attribution integrity are governed general copyright law include both actual statutory damages. Statutory damages may range from $750 $30,000 per work “as considers just.” Id. § 504(c)(1). However, if “the [artist] sustains burden proving, finds, [a violation VARA] committed willfully, in discretion may increase award statutory sum more than $150,000 [per work].” Id. § 504(c)(2).

II. crux parties’ dispute appeal is whether works “recognized stature,” thereby protected destruction

under 106A(a)(3)(B). We conclude when one high quality, status, caliber has been acknowledged such relevant community. See Carter Helmsley Spear, Inc. , F. Supp. ‐ (S.D.N.Y. 1994), aff’d part, vacated part, rev’d part 77; see also, e.g. Martin v. City Indianapolis , F.3d (7th Cir. 1999). A work’s high quality, status, caliber is stature, acknowledgement stature speaks work’s recognition.

The most important component stature will generally be artistic quality. relevant community will typically be artistic community, comprising historians, art critics, museum curators, gallerists, prominent artists, experts. Since necessarily fluid concept, we can conceive circumstances under which, example, “poor” highly regarded artist— e.g. , anything Monet—nonetheless merits protection destruction under VARA. This approach helps ensure protects “the public interest preserving [the] nation’s culture,” Carter This approach also ensures personal judgment determinative factor court’s analysis. See Christopher J. Robinson, “Recognized Stature” Standard Visual Artists Rights Act Fordham L. Rev. n.84 (2000).

After all, we are mindful Justice Holmes’s cautionary observation “[i]t dangerous undertaking persons trained only law constitute themselves final judges worth [visual art],” Bleistein Donaldson Lithographing Co. U.S. 239, (1903); accord Pollara Seymour , 344 (2d Cir. 2003) (“We steer clear of an interpretation of VARA that require courts assess . . . worth of a purported work of visual . . . .”). For reason, aside rare case where artist or work is of such prominence issue recognized stature need be tried, expert testimony substantial evidence non expert recognition will generally required establish recognized stature.

III.

Accordingly, establish violation case, required demonstrate achieved recognized stature. Judge Block found they so. He concluded “the plaintiffs adduced such plethora exhibits credible testimony, including testimony highly regarded expert, even under most restrictive evidentiary standards almost all plaintiffs’ easily qualify works stature.” S. App’x These findings fact are reviewable only clear error. See Drew Thornley, Visual Artists Rights Act’s “Recognized Stature” Provision Clev. St. L. Rev. n.81 (2019) (“[R]ecognized is question fact.”). “A finding ‘clearly erroneous’ when although there evidence support it, reviewing on entire evidence left with definite firm conviction that mistake has been committed.” Wu Lin v. Lynch (2d Cir. 2016) (quoting United States U.S. Gypsum Co. U.S. (1948)). Appellants do not hurdle this high bar.

In attempting do so, Wolkoff takes issue with number decisions Judge Block made process reaching his conclusions. proceedings below were contested able counsel involved voluminous exhibits extensive lay expert testimony. On this appeal, Wolkoff us revisit reconsider number those decisions that were debatable. But this appeal, Wolkoff must demonstrate that Judge Block abused discretion findings fact he made were clearly erroneous, simply debatable.

Initially, contends great majority question temporary ones which, reason, could meet recognized requirement. We disagree. We see nothing excludes temporary artwork attaining recognized stature. Unhelpful contention fact Wolkoff’s own expert acknowledged temporary can achieve stature. statute does not adopt categories “permanent” “temporary” artwork, much less include definition these terms. is distinctive “[a] visual art is defined by Act terms both positive (what it is) negative (what not).” Carter 84. In narrowing scope statute, Congress adopted highly specific definition visual art. See U.S.C. In light specificity, we see no justification adopting additional requirement included Congress, even if requirement styled as component recognized stature. To do so upset balance achieved legislature.

Additionally, least as recently as New York City saw clear instance where temporary achieved stature. That winter, Christo Vladimirov Javacheff Jeanne ‐ Claude Denat, known collectively as “Christo,” installed 7,503 orange draped gates Central Park. This work, known “The Gates,” lasted only two weeks but subject significant critical acclaim attention, just world but also from general public. See Richard Chused, Moral Rights: Anti ‐ Rebellion Graffiti Heritage Colum. J.L. & Arts (2018). As concedes, “The Gates” achieved been protected under VARA.

In recent years, “street art,” much which “temporary,” has emerged as major category contemporary art. As one scholar has noted, “street art” has “blossomed into far more than spray ‐ painted tags quickly vanishing pieces . . . painted rebellious urbanites. In some quarters, it has become high art.” Id. For example, noted street artist Banksy has appeared alongside President Barack Obama Apple founder Steve Jobs on Time magazine’s list world’s most influential people. Though often painted building walls where may subject overpainting, Banksy’s work nonetheless acknowledged, both community general public, as significant artistic merit cultural importance. Famously, Banksy’s Girl with Balloon self ‐ destructed after selling $1.4 million Sotheby’s, but, with Banksy’s street art, temporary quality has only added recognition.

A Banksy painting would have possessed recognized stature, even if it temporary. Even if “The Gates” been replaced with another art exhibit, work maintained recognized stature. Although a work’s short lifespan means there will be fewer opportunities work to be viewed evaluated, temporary nature art is not a bar to stature.

The correctly observed when Congress wanted to impose durational limits work subject VARA, knew how do so. For example, statute provides “[t]he modification a visual which result passage time or inherent nature materials not distortion, mutilation, or modification described subsection (a)(3)(A).” U.S.C. 106A(c)(1). For reason, gradual erosion outdoor exposed elements or melting ice sculpture does threaten liability. Congress also imposed durational limit insofar statute protects only are “fixed”—“sufficiently permanent . . . perceived . . . for period more than transitory duration.” Id. §§ 102(a). We have held that work that exists for only 1.2 seconds is merely transitory duration but have noted with approval cases holding that work “embodied . . . least several minutes” more than transitory duration. Cartoon Network LP, LLLP CSC Holdings, Inc. (2d Cir. 2008). It undisputed that 5Pointz survived far longer than this therefore satisfied statute’s minimal durational requirement.

As variation theme that temporary does merit VARA protection, Wolkoff contends that because were aware that 5Pointz buildings might eventually be torn down, they should expected work be destroyed. correctly observed, however, that accounts possibility. Under 113(d), if incorporated into site such could be removed without being destroyed, then required obtain “a written instrument . . . [was] signed owner building [artist] specifie[d] installation may subject work destruction, distortion, mutilation, or other modification, reason its removal.” U.S.C. § 113(d)(1)(B). It undisputed no such instrument executed. If, on the other hand, 5Pointz could been safely removed, then Wolkoff required to provide written notice planned demolition to allow days remove to pay its removal. See id. 113(d)(2)(B). Again, undisputed Wolkoff none this.

IV.

In addition his contention temporary cannot achieve recognized stature, Wolkoff argues district erred several respects. He contends erroneously focused on recognized quality, rather than recognized stature, that, contrary approach allegedly taken court, must assessed time work’s destruction, time trial. He argues improperly credited testimony Renee Vara, artists’ expert, because she had actually seen certain prior destruction had based her testimony on images she examined. Finally, objects court’s reliance Jonathan Cohen’s testimony about curation artwork, as well as consideration overall quality site.

None these contentions, considered separately or the aggregate, convinces us any Judge Block’s findings clearly erroneous. There is no merit Wolkoff’s contention the improperly focused on quality opposed recognized stature. court’s detailed findings are dispositive on point. Nor are we persuaded the evaluated works’ recognition time trial, since it explicitly stated “focus [its] decision recognition works achieved prior whitewash.” S. App’x In any event, quality work, assessed expert after has been destroyed, can probative pre ‐ destruction quality, status, caliber.

Nor do we see merit Wolkoff’s criticism court’s decision credit artists’ experts. As almost always case where competing expert testimony adduced, trier fact accepts one side’s experts over other’s. Judge Block so here gave sound reasons choice. Renee Vara, artist’s expert, testified high artistic merit but also testified she seen before destruction had assessed them basis images. We see nothing wrong certainly nothing clearly erroneous with this approach, one well within a district court’s broad discretion accept or reject evidence.

Next, Appellants object district court’s reliance on Jonathan Cohen’s testimony about his curation artwork. reasoned Cohen’s selection process, which involved review portfolio an artist’s work plan for his or her 5Pointz project, screened for stature. Appellants, however, contend determination irrelevant because Cohen made evaluation before painted works. Nonetheless, cogently reasoned respected aerosol artist’s determination another aerosol artist’s work is worthy display is appropriate evidence stature. An artist whose merit has been recognized another prominent artist, museum curator, critic is more likely create work recognized than an artist who has been screened. This inference even stronger where, as here, Cohen reviewed plan subject before allowing be painted. ^[7] Accepting crediting such testimony easily falls within a district court’s trial management responsibilities and instance involved no abuse of discretion or clear error.

Finally, contends that court erroneously focused on the stature of 5Pointz site rather than individual 5Pointz works. Yet again we see no error. The focus exclusively stature of site. considered individual works at site and determined that some were recognized stature. Setting that aside, we easily conclude that site a work relevant recognition and stature and may, certain cases, render recognition and stature a work beyond question. Appearance at a major site— e.g. , Louvre or Prado—ensures a work will be recognized, is, seen appreciated by public art community. appearance work art curated site such museum means work has been deemed meritorious curator therefore cases, an artist’s prominence might render all work “recognized stature,” even if particular are unknown public. E.g. , Scott v. Dixon , F. Supp. 2d 400 (E.D.N.Y. 2004) (“[T]he can imagine set circumstances where artist’s such recognized any work artist subject VARA’s protection . . . .”); Lubner City Los Angeles Cal. App. 4th (1996) (inferring “of stature” because creators “recognized who created exhibited paintings drawings over years” (citing Carter F. Supp. 325)).

is evidence stature. When curator is distinguished, selection is especially probative. Consequently, we see no error when district court considered 5Pointz site itself as some evidence works’ stature.

The evidence before district court voluminous—sufficient persuade both advisory jury and Judge Block. In addition extensive lay testimony documentary evidence, it included much expert testimony, which is often linchpin claims “recognized stature.” See Carter F. Supp. at 325. evidence supporting district court’s findings vast, we do not arrive at “the definite firm conviction mistake has been committed.” Wu Lin Because applied correct legal standard did not commit clear error, determination liability affirmed.

V.

Appellants next challenge court’s award damages. award actual because could quantify market value art. However, found Appellants’ violation willful, advisory jury arrived same conclusion. See U.S.C. 504(c)(2). A violation willful when defendant had knowledge conduct was unlawful recklessly disregarded possibility. Bryant v. Media Right Prods., Inc. 603 F.3d 143 (2d Cir. 2010).

We review court’s finding willfulness clear error, we see none. See 4 Pillar Dynasty LLC N.Y. & Co., Inc. 933 209 (2d Cir. 2019). As Judge Block found, Wolkoff admitted awareness, prior to destroying 5Pointz, artists pressing VARA claims. Additionally, VARA contains provisions limiting artists’ rights vis à ‐ vis building owners when owners give them days’ notice opportunity remove artwork, U.S.C. 113(d)(2), but testified that, although he advised by counsel both before after destruction, he chose “to hire people whitewash[] in one shot instead waiting three months ,” S. App’x (alteration original). found testimony evinced deliberate choice violate VARA rather than follow statutory notice procedures. Wolkoff help cause when he later reminded the district court he “would make the same decision today.” J. App’x

Most troubling to district court to us Wolkoff’s decision to whitewash artwork all. Nothing record indicates was necessary to whitewash artwork before beginning construction apartments. district court found Wolkoff could allowed to remain visible until demolition began, giving artists time to photograph recover their work. Instead, he destroyed work immediately after district denied preliminary injunction before could finalize promised written opinion.

Wolkoff testified he whitewashed prevent artists illegally salvaging work. However, he offered no basis this belief and, contrary, testified always behaved lawfully. entitled conclude, based record, acted willfully liable enhanced statutory damages.

VI.

Finally, we address Wolkoff’s challenge amount statutory awarded—$6,750,000—the maximum amount allowed. District courts enjoy wide discretion in setting statutory damages. Bryant , F.3d at 143. We review the award those damages abuse discretion. Id. To find an abuse discretion, we must be convinced the district based decision on error law, applied the incorrect legal standard, made clearly erroneous factual finding, reached conclusion cannot located within the range permissible decisions. Klipsch Grp., Inc. ePRO E Commerce Ltd. F.3d (2d Cir. 2018). We see no abuse here. district carefully considered six factors relevant determination statutory concluded “Wolkoff rings bell on each relevant factor.” S. App’x 45. Those six, drawn copyright law, are “(1) infringer’s state mind; (2) expenses saved, profits earned, infringer; (3) revenue lost copyright holder; (4) deterrent effect on infringer third parties; (5) infringer’s cooperation providing evidence concerning value infringing material; (6) conduct attitude parties.” Bryant

First, Wolkoff’s state mind documented court’s extensive finding willfulness, which we see no reason disturb. In respects, factor cuts artists’ favor. As properly found, Wolkoff, sophisticated real estate developer, was “willing to run the risk being held liable substantial statutory rather than to jeopardize his multimillion dollar luxury condo project.” S. App’x at n.20. Moreover, Wolkoff whitewashed the artworks without any genuine business need to do so. It simply, as district court found, “act pure pique revenge” toward artists who had sued him. S. App’x 44. As district court also found, Wolkoff set out dark night, using cheapest paint available, standing behind workers urging them “keep painting” “paint everything.” J. App’x The whitewashing end conflict single evening. The effects lingered almost year. The district noted sloppy, half hearted nature whitewashing left easily visible under layers cheap white paint, reminding artists on daily basis what happened them. Moreover, mutilated artworks visible millions people passing site on subway. lost revenue prong as straightforward but nonetheless also tips

toward artists. declined award actual damages, which takes mean suffered no loss revenue. However, said, decision based difficulty quantifying Appellees’ loss, not on absence any loss. Unlike actual damages, statutory damages do require precise monetary quantification injury. See, e.g. , Davis Gap, Inc. F.3d (2d Cir. 2001); Warner Bros. Inc. v. Dae Rim Trading, Inc. (2d Cir. 1989). Consequently, within its discretion determining Appellees’ loss was significant, purposes statutory damages, but compensable through actual damages. As expressly recognized, “[t]he value artists’ careers significant, loss, though difficult quantify, precluded future opportunities acclaim.” S. App’x 48. deterrent effect infringer third parties also supports

amount statutory imposed court. Wolkoff admitted he no remorse actions. To contrary he confessed he “would make same decision today.” J. App’x In these circumstances, maximum statutory award could serve deter future violations VARA. It could further encourage other building owners negotiate good faith with whose are incorporated into structures abide day notice provision set forth when incorporated can removed without destruction modification. final factor—the conduct and attitude the parties—also cuts favor maximum statutory award. During preliminary injunction phase,

Wolkoff testified that it critical that demolition site occur within few months at most because otherwise he stood lose millions dollars credits possibly entire project. Wolkoff later changed testimony stated that at time preliminary injunction hearing, there at most “possibility” that delay would have caused him financial loss. S. App’x at 114. Subsequently, evidence at trial established had even applied demolition permit until four months after whitewashing, he admitted he suffered no loss delay. described these statements “conscious material misrepresentation[s]” noted they been made, granted preliminary injunction. S. App’x at 116.

In contrast, throughout proceedings below, artists complied with what law required. Cohen sought landmark designation and, when option became unavailable, sought purchase site. Judge Block noted “conducted themselves with dignity, maturity, respect, all times within law.” S. App’x In sum, we conclude 1 appropriately analyzed each relevant factor see no abuse discretion. We 2 considered Wolkoff’s contentions conclude they lack merit. 3 CONCLUSION

4 For foregoing reasons, judgment 5 AFFIRMED .

[1] statute recognizes that, unlike novelists composers, example, visual depend integrity physical manifestations works. Artists’ moral rights “spring belief artist process creation injects spirit into artist’s personality, well as integrity work, should therefore protected preserved.” Carter

[2] statute contains additional provisions regarding installed prior effective date, but those provisions are impertinent here, all relevant events transpired long after became effective.

[3] Shepard Fairey, Banksy Time (Apr. 2010), http://content.time.com/time/specials/packages/article/0,28804,1984685_1984940_ 1984945,00.html.

[4] Scott Reyburn, How Banksy’s Prank Might Boost His Prices: ‘It’s Part Art History’ N.Y. Times (Oct. 2018), https://www.nytimes.com/2018/10/07/arts/ design/banksy ‐ painting.html.

[5] Banksy himself has participated creative destruction, which has only drawn further attention work. documentary Graffiti Wars (2011), example, describes creative feud between Banksy rival artist King Robbo, which involved repeated modification overpainting each other’s work. feud detract recognition either artist’s work.

[6] Although Cohen acknowledged awareness buildings eventually torn down, plaintiffs testified they unaware Appellants’ plans.

[7] House Judiciary Committee Report confirms our conclusion artist’s “pre ‐ existing standing artistic community” relevant “recognized stature.” H.R. Rep. No. (1990), reprinted U.S.C.C.A.N. See generally United States Epskamp (2d Cir. 2016) (noting legislative history may invoked confirmatory purposes). Indeed, several courts possibility that, extreme

[8] Appellants point out only some present plaintiffs advanced claims before whitewashed. Nonetheless, claims even some sufficed notify Appellants artists’ rights under could implicated destroying artwork. Moreover, whitewashing artwork, Appellants differentiate between involved ongoing litigation those whose creators sued only later.

Case Details

Case Name: Castillo v. G&M Realty L.P.

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 20, 2020

Citation: 950 F.3d 155

Docket Number: 18-498-cv (L)

Court Abbreviation: 2d Cir.