No Infringement Intended: Can I Clean the Graffiti Off My Walls? When Intellectual Property and Property Rights Clash

Does owning a piece of property give you the absolute right to alter or remove any art that’s on it? That question was asked in the recent, high-profile dispute in Manhattan over the Elizabeth Street Garden, a public space beloved by residents that was transformed from a once-abandoned city lot into a sculpture-filled garden three decades ago. The city planned to demolish the garden to build affordable housing for seniors. In response, the garden’s advocates filed a federal lawsuit in February 2025, arguing the entire garden was a “physical and social sculpture” protected from destruction by the Visual Artists Rights Act (VARA).

The dispute was ultimately resolved in June 2025 and the garden was spared. The case still highlights the legal power of VARA and the risks for property owners, a lesson a New York real estate developer learned the hard way when he was ordered to pay $6.75 million for whitewashing graffiti on his own property in the landmark 5Pointz case.

Moral Rights and the Visual Rights Act

While most discussions of copyright law focus on economic rights, like the right to reproduce or distribute a work, U.S. law also recognizes a category of “moral rights” for creators. These rights are designed to protect an artist’s personal and reputational interests in their work.

Established in 1990, VARA codifies these protections for a narrow class of works, including one-of-a-kind or limited-edition (200 or fewer copies) paintings, drawings, prints, and sculptures. VARA grants artists two primary rights for their lifetime:

• Right of Attribution: The right to be recognized as the author of a work.
• Right of Integrity: The right to protect a work from distortion, mutilation, or destruction.

For a work to be protected from outright destruction under VARA, it must be proven to be a “work of recognized stature”. This means the work must be widely acknowledged as having significant artistic value, which is often shown through media coverage or recognition within the art community.

The 5Pointz case

In the early 1990s, a neglected industrial complex in Queens, NY, began attracting graffiti artists who used its walls as a canvas. The property owner, Gerald Wolkoff, eventually agreed to let an artist named Jonathan Cohen curate the space.

Under Cohen’s direction, the location, which was named 5Pointz, became a renowned outdoor art gallery that was frequented by artists and tourists from all around the world. This arrangement continued until 2013, when Wolkoff announced plans to demolish the buildings to construct luxury apartments.

Cohen and the artists filed a lawsuit under VARA to prevent the destruction of their work, arguing the site had immense cultural and artistic value. After a court denied their initial request for a preliminary injunction, Wolkoff reacted. On the night of November 19, 2013, he ordered the buildings to be whitewashed, abruptly destroying all the artwork without notice. This deliberate act became the key point of the case.

A Costly Decision

The central issue at the trial was whether the temporary graffiti murals could achieve “recognized stature” under VARA. The court determined that permanence is not a requirement for protection and that graffiti could qualify as visual art.

Weighing evidence of media coverage and public acclaim, the court found that 45 of the 49 works in question had met the standard of recognized stature. Citing the “willful nature of the destruction,” the judge awarded the artists the maximum statutory damages: $150,000 per work, for a total of $6.75 million. An appellate court later affirmed the decision.

Takeaways

The 5Pointz case shows an area of risk for real estate developers and commercial property owners, who might not be thinking about whether they should remove an old fountain from a hotel lobby, or in this case, graffiti on the walls. There are a few areas to take action in order to reduce risk from VARA rights:

• Acknowledge artists’ rights. Owning a building does not grant you the absolute right to destroy art that is affixed to it. Whether it’s a commissioned mural on an exterior wall or a sculpture in a lobby, VARA rights may apply.
• Put it in writing with a waiver. The best way to reduce risk when it comes to VARA is through a clear, written agreement with the artist before the work begins. VARA rights are waivable, but the waiver must be in writing and specifically identify the work to which it applies. Attempting to negotiate a waiver after the art is created can end up being more costly.
• Expand the agreement. When commissioning art, think beyond just VARA. The agreement is an opportunity to secure other valuable rights, such as the ability to use images of the mural in advertising or to create reproductions, maximizing the value of the investment.

Lessons Learned

While the impulse to simply “clean your walls” is understandable, the law requires a bit of planning in this department. A simple written agreement that waives an artist’s VARA rights is the best and most cost-effective protection against a future lawsuit. Without it, you may discover that while you own the building, you don’t have complete control over what’s on it, or in it.