As fans of Banksy can attest, some graffiti is indeed art but if it is done on someone else’s property it is hard to control that art. After a federal judge refused to prevent the demolition of graffiti mecca, 5Pointz, despite a lawsuit from the graffiti artists, that lawsuit is now heading to trial.

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Starting in 1993, 5Pointz has permitted, with specific authorization, graffiti artists to paint their art on the property located in Queens. The building has more than just artists’ tags but pictures and scenes of many famous people. In 2013, the owners of the property decided they wanted to destroy the building in order to put up new housing units. However, 17 graffiti artists, whose work adorns the complex, tried to halt such demolition complaining that such destruction would violate copyright law and the Visual Artists Rights Act.

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In 2013, the Federal Court Judge, Fredric Block, despite initially allowing a preliminary injunction, refused to extend such injunction, thus allowing the destruction of the building. In holding so, Judge Block stated that the owners of the complex are just exercising their right to redevelop the property and that since they allowed people to paint on the complex, 5Pointz can control the property including destroying it if they so wish. The property was subsequently white-washed and then destroyed to make way for condos.

In a case of too little, too late, that same Judge has now sent the dispute to trial. The jury must decide whether the graffiti art was “recognized stature” that are protected by the Visual Artists Rights Act which permits artists to prevent well-known works of art from being destroyed. No trial date has been set yet but the writing is on the wall that this will be a highly contested trial.