Courts decide that graffiti is REAL – Meaning and identity in graffiti, skateboarding, and on the web

One reason graffiti interests me is that it is socially and institutionally ambiguous. It was created back in the late 1960s and 1970s by (mostly) kids who didn’t go to art school or frequent museums. They just tagged their names – not their legal names, but their noms de guerre if you will – wherever they could and elaborating them into every larger and more complex patterns until they were able to cover the side of a subway car with a “piece” (for masterpiece), as they call it. Naturally this brought them into conflict with the authorities and, for that matter, with much of the pubic as well.

The authorities and the wide public thought of it as vandalism, legally it is, while they thought of it as, well, self-expression, maybe art as well – though who knows what ART is these days. As the 1980s rolled around graffiti had become the graphic style of hip-hop culture and then extreme sport (such as skateboarding) and, as such, showed up as designs on apparel and other merchandise, and then in the display windows of upmarket department stores, of all things. Graffiti was becoming institutionalized.

A small cadre of writers – for what is what these artists call themselves, for writing is what they do; they write names – made money producing these designs and doing “permission” walls around the world. Even as they were making bank in legit endeavors, they still kept up their street cred by doing illegals, often in secret hidden places no one knew about but them. As this was going on some writers where doing canvases that could be sold in galleries, hung in private collections, and even in museum collections. We even have dedicated graffiti museums these days, but the illegal work continues.

And that brings us to 5Pointz, a legendary site of legit graffiti in Queens, NYC, that ended up pitting 21 graffiti writers against a landlord who decided to cash in on his property and so destroyed their work without prior notice. I discuss that in the next section. Then I take a look at FDR Skate park in Philadelphia which exists by grace of the governing authorities. It thus has, like the graffiti that covers it, an interstitial (between the cracks) existence. I conclude with a short look at social media, noting that one of the earliest sites on the web is Art Crimes, a repository for graffiti photos started by Susan Farrell in 1994.

5Pointz

Credit: iamNigelMorris, “5Pointz” (2009). (CC BY 2.0)

Back in 2002 Jerry Wolkoff made an oral agreement with Jonathan Cohen allowing him to manage and curate his 200K sq. ft. warehouse in Queens in New York City for use by graffiti writers. Cohen, who gets up (paints) as Meres One, renamed the building as 5Pointz (for the 5 boroughs of NYC). In sort order the building was covered in graffiti and attracted writers and admirers from all over the world. To the extent that such a thing is possible, that building became graffiti’s mecca. Roughly a decade later Wolkoff decided he wanted to demolish the building and replace with it with luxury condos.

The artists were not happy and filed a petition under the Visual Artists Rights Act of 1990 to stop the demolition. Without giving the artists any notice Wolkoff locked the artists out and had the building whitewashed overnight. 5Pointz was gone. The issue went to trial and the artists were awarded $6.7M. Wolkoff appealed and, in February of 2020, lost. Graffiti had reached a new institutional milestone.

Louise Carron has reviewed the case at the Center for Art Law. Here’s her overview:

February 20, 2020 will be known in legal art history as the day that street art was affirmed as “a major category of contemporary art.” In Castillo v. G&M Realty L.P., which put an end to a 7-year long dispute over the whitewashing of the Long Island City-based “graffiti mecca” known as 5Pointz, the U.S. Court of Appeals for the Second Circuit upheld Hon. Frederick Block’s February 2018 ruling for the District Court for the Eastern District of New York (E.D.N.Y.). Judge Block awarded $6.75 million in statutory damages to 21 aerosol artists whose works were destroyed without prior notice by the owner of the building where the artists had been authorized to create for a decade.

In addition to being a great win for the plaintiffs, this case helps legal practitioners understand the Visual Artists Rights Act of 1990 (“VARA”) and pays deference to graffiti as an art form. This federal law takes its roots in the European moral rights theory of protecting art as an expression of the artist’s personality. Among the rights awarded to visual artists is the protection against the willful destruction of works of “recognized stature.” VARA outlines two mechanisms for enforcing these rights:

1. Unremovable works incorporated in a building cannot be removed without the artist’s consent, unless the artist waives his or her rights in a writing signed by both the artist and the building owner.
2. Authors of removable works are entitled to 90-days written notice to enable them to salvage the works.

However, VARA does not explain how to reach the threshold of “recognized stature,” so the task of defining its boundaries has been left to the courts, litigants and their attorneys. In Castillo, the Court of Appeals determined whether temporary artworks possessed moral rights and specifically, whether they could achieve recognized stature. The court concluded that “the temporary nature of [street] art is not a bar to recognized stature.”

After a chronology of events and a discussion of the legal issues Carron notes:

this decision is noteworthy for examining street art through the lens of art history and acknowledging that it has become “a major category of contemporary art.” The Second Circuit Court references famous visual artists such as Monet, Christo and Jeanne-Claude, along with Shepard Fairey and Banksy, the latter two known for their “illegal” works and whose pieces sell for millions of dollars at auction. This decision elevates street art to the same level as “high art,” which is exactly what the community has been fighting for for decades, specifically to go beyond the “vandalism” label that authorities coined in the 1970s.

However, it must be stressed that this decision is of limited scope, as it deals with authorized/sanctioned/legal art and is unlikely to be extended to unauthorized works which have not achieved recognized stature. Also noteworthy, the court’s evaluation of the Appellant’s behavior, testimony, and experts were all used against him. This shows how this ruling is particularly fact-specific and sui generis: Jerry Wolkoff engaged in a disrespectful pattern against the artists, which the courts acknowledged and did not allow such behavior to go unpunished.

So, a milestone has been reached, a carefully and narrowly defined milestone to be sure, but a milestone nonetheless. The artists and their art must be respected. 

Finally, I want to come back to the fact that 5Pointz was admired by people from all over the world. It was a locus of fundamental meaning, a quasi-sacred shrine. That sentiment is why that art is valuable and worthy of legal protection. The experts who testified to its “recognized stature” were proxies for those many people.

DIY Sk8parks [Philly’s FDR]

Skateboarding started in the third quarter of the previous century in California as an offshoot of surfing culture. During the 1970s purpose-built skateparks emerged, and in 1990, in Portland, Oregon, skateboarders began creating their own parks. They’d find an out of the way spot, haul in materials, and create their own parks. I’ve photographed two such parks in Jersey City, now gone.

One of the largest and best-known in the nation is FDR, in South Philadelphia. It was constructed under Interstate 95 at the southern end of FDR Park, hence the name. The city government started it in 1994 in an effort to get the skaters out of the central city. They set aside the land, put in a few features, and left it to the skaters, who then proceeded build their own. Here’s a short documentary:

Here’s some photos:

Who runs the place? Who designs and constructs the features? Where do the materials come from? Who handles the money? What’s the approval process. As far as I know the process is entirely informal. The city owns the land, but that’s it. I sent an email to Nick Orso, a well-known skateboard activist who lives in Philadelphia, who told me that construction is organized by one man, named Carlos, and that there is no non-profit organization involved.

If someone were badly injured and decided to sue, how would that go? My friends in the skateboarding community tell me that if that happened, the person would be ostracized from the community. Sure, but more basically, who is there to bring suit against? The City of Philadelphia? My guess is that if the city found itself defending suits it would shut the park down pretty quickly.

As for the graffiti all over everything, I’m pretty sure that goes the way graffiti always goes. Anyone can put anything on any surface at any time. But if you go over someone else’s work, what you do must be better. That’s pretty much it. Though, in this particular case then does seem to be at least one very specific understanding. One surface is covered with an American flag and it does get repainted when the surface degrades. FWIW, I detect a strong quasi-nationalist sentiment – sk8board nation as it were – in the graffiti.

Look at the back in the center to see the flag.

My point is simple: Here we have an enterprise of modest scope that pretty much runs on informal norms. Philadelphia also has ‘legit’ skateparks. Some relatively small neighborhood affairs, but there’s also a large one, Franklin’s Paine, not too far from the Art Museum (the one immortalized by Rocky Balboa’s training regime).

From social media to meaning and identity

And then we have the world-wide web and, in particular, social media. Sites like Facebook, Twitter, YouTube (owned by Google), are privately owned and straddle the globe. They are thus subject to the laws of many nations, and, in a way, more powerful than any of them. Recent political events have made freedom-of-speech issues critical in the United States but, since these facilities are owned and operated by private companies, they are not subject to First Amendment protection.

What are they subject to? How are they to be governed and regulated? I have no intention of proposing answers to these questions. My purpose is quite limited, to point out that the issues raised by social media – not only who says what, but also who owns user-data and how is it to be used – are not readily handled by existing institutions. They are thus like graffiti and do-it-yourself skateparks.

Skateparks exist and are used locally. Graffiti is a bit different. Yes, the individual tags, throw-ups, pieces, and productions – terms of art for various kinds of graffiti art are called – all exist on specific surfaces at specific places. But many of them have been photographed and starting with Susan Farrell’s Art Crimes in 1994, many of these photographs end up on the web. More recently Leonard Bogdonoff has been using computer technology to crawl the web and create a genealogy of graffiti and street art. Given this web-mediated connectivity I have come to think of the graffiti (and street art) taken collectively as the World-Wide Wall, a single aesthetic entity existing both on the ground and in the cloud: ungoverned, beyond all institutions, ever-growing and ever-changing.

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Graffiti and skateboarding are sources of meaning for many. As such those activities are important facets of their identity. For a dedicated few, those activities may event be the central anchors of their identity, their deepest point of purchase on the world.

What about social media? The web is large and diffuse. It has no center. But, in social media many find a point of purchase on the world that has become very important to them. It is not only a place to display one’s identity, but an arena in which one can develop and solidify one’s identity in conflict with others. It has become an arena that is ungovernable by current institutions.

Graffiti is a new art form born in the second half of the 20th century and skateboarding is a new sport born at roughly the same time. Will social media prompt us to invent new modes of governance that transcend existing boundaries. Will it have that kind of power? Can we summon the will to do so?

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Addendum: For more recent thoughts, see Courts decide that graffiti is REAL 2: Further thoughts [reframing the discussion]. And I'm sure there will be more beyond that.