Whose Building is it Anyway?

A dozen years ago, however, Wolkoff committed an act of generosity which he now must regret: He came to an agreement with some 21 local graffiti artists and granted them permission to spray-paint his building’s exterior walls. When he whitewashed the walls of his property, in preparation for razing it, the artists sued Wolkoff under the 1990 federal Visual Artists Rights Act (VARA).

The statute, which was largely designed to protect the rights of artists in copyright disputes, has since been expanded to protect art from misattribution or alteration or (as in this case) destruction. A jury agreed with the artists, and Judge Block fined Wolkoff $6.7 million—roughly $150,000 each for some 45 separate graffiti murals.

To be sure, in assessing damages, Block was merely affirming the jury’s verdict. But because the walls remained standing for nearly a year after they had been whitewashed, the 21 artists concluded (in the words of the New York Times) that the delay “seemed .  .  . to be a deliberate insult to the thousands of hours of work put into the murals. Judge Block thought so as well.” That, at any rate, would be the charitable explanation for the curiously personal—indeed, injudicious—tone of Block’s ruling:

Or put another way, no good deed goes unpunished. For if Wolkoff had simply forbidden the artists to disfigure his building’s walls with graffiti, he would be $6.7 million richer today. VARA, which was designed to protect the reputations of artists, has now become a weapon to impoverish property owners defending their property against vandalism.

I concede, of course, that my attitude toward Judge Block’s judicial pique is informed by my own view that graffiti barely qualifies as art—as well as a lingering concern that property rights have successfully been eroded by recent court decisions. Even the graffiti artists, in this case, acknowledged that they knew the Wolkoff building was destined to be torn down. Indeed, some explained to the Times that one quality of their medium is its ephemeral nature: “I wouldn’t mind seeing my artwork go down with the building,” said William Tamontozzi.

As it happens, the Times story (“Graffiti Artists Find Validation in Judge’s Ruling”) not only suggested that the owner-developer got what he deserved but that Block’s anger at Wolkoff’s “insolence” will lead to an expansion of the rights and prerogatives of graffiti artists. The Times may be right about that—or it might be wrong. For as one attorney specializing in “art law” warned, with Block’s $6.7 million judgment in mind, “building owners are going to be reluctant to give permission” to graffiti artists to spray-paint their property.

I would offer a further argument. As Mayor Bill de Blasio settles into his second term, Judge Block’s ruling may also be seen as part of a continuing repudiation of the “broken-windows” doctrine of the Giuliani era, when the squalor and municipal disorder of late-20th-century New York were supplanted by a sense of security and civic decorum—civilization, if you will. The heyday of graffiti—when the subway trains were literally camouflaged by spray paint and the Times perceived romance where most saw vandalism—may be making a comeback.

Which brings us to Judge H. Lee Sarokin. In 1991 Sarokin, a federal district judge appointed to the bench by Jimmy Carter and later raised to the Third Circuit Court of Appeals by Bill Clinton, earned some measure of notoriety when he ruled against the public library in Morristown, New Jersey, which had sought the occasional right to ban a disorderly, malodorous, and famously litigious homeless man named Richard Kreimer from its premises.

Judge Sarokin ruled that the library had no intrinsic right to bar patrons for their offensive conduct or poor hygiene or because their presence caused discomfort to readers. In his opinion, the real offense was not Kreimer’s behavior but the presumption of the library and the taxpayers who supported it: “If we wish to shield our eyes and noses from the homeless,” he declared, “we should revoke their condition, not their library cards.”

Of course, this was the height of the Reagan-Bush era, when the phenomenon of homelessness was laid exclusively at the doorstep of incumbent (Republican) administrations in Washington. Striking an attitude from the bench, instead of enforcing the law, is a constant temptation; and in those days, jurists were no less inclined to substitute op-ed columns for legal findings than they are now. H. Lee Sarokin’s judgment (which was ultimately reversed) was symbolic of the same kind of legal transmutation that informs Frederic Block.

The tendency to idealize property vandals posing as artists, or obnoxious vagrants pretending to be readers, is irresistible to a certain sensibility. Judges are not just creatures of their time and circumstances; they read newspapers and watch TV as well. Justice can be blind in more ways than one.