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Law Offices of Jeannine Chanes, P.C.
Attorney and Counselor at Law
27 Whitehall Street, 4th Floor New York, New York 10004
212-785-6543 917-575-9813 (c) Fax: 212-785-6542
November 11, 2013 Via ECF Hon. Frederic Block United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: Dear Judge Block: Plaintiffs submit this letter in response to the Court’s oral directive at the close of the November 6-8, 2103 evidentiary hearing held with respect to Plaintiffs’ motion for a preliminary injunction in this declaratory judgment action under the Visual Artists Rights Act of 1990 (“VARA”). It is well-established that district courts enjoy broad latitude in fashioning temporary equitable remedies such as the preliminary injunction sought by the Plaintiff artists in this action, and a district court’s discretion is accorded substantial deference by other courts. See, e.g., King v. Innovation Books, 976 F.2d 824, 828 (2d Cir. 1992), accord American Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 594-95 (7th Cir. 1986) (reviewing district court's grant of preliminary injunction with "substantial deference" and stating that court of appeals will reverse only where there exists "a strong conviction that [the district judge] exceeded the permissible bounds of judgment"). Further, courts of equity have the unquestioned right to make temporary directions with respect to the preservation of unique, original works of art pending the outcome of litigation. United States v. Herce, 334 F. Supp. 111, 114 (S.D.N.Y. 1971). I. Plaintiffs Have Met The Recognized Stature Prong Under VARA As the Court correctly observed during last week’s hearing, whether the works of visual art in this litigation have “recognized stature,” which is an undefined term under VARA, is an issue of fact that will ultimately be determined at trial. Erin Thompson, Esq., Cohen, et al. v. G & M Realty, L.P., et al. 13-CV-05612 (FB) (JMA)
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Hon. Frederic Block November 11, 2013 Page 2 who was offered as defendants’ expert witness on “recognized stature” under VARA, testified that Carter v. Helmsley-Spear, 861 F. Supp. 303 (S.D.N.Y. 1994) (“Carter II”), aff’d in part, rev’d in part, vacated in part on other grounds, 71 F.3d 77 (2d Cir. 1995), is dispositive on the issue. Ms. Thompson is correct. Under Carter II, “recognized stature” is a low threshold that can be met several different ways: In light of the preservative goal of [VARA], however, the recognized stature requirement is best viewed as a gatekeeping mechanism — protection is afforded only to those works of art that art experts, the art community, or society in general views as possessing stature. A plaintiff need not demonstrate that his or her art work is equal in stature to that created by artists such as Picasso, Chagall, or Giacometti. As one commentator has noted, "The advantages of the ‘of recognized stature’ qualification include barring nuisance law suits, such as [a law suit over] the destruction of a five-yearold's fingerpainting by her class mate….” Carter II, 861 F. Supp. 303, 324-325, quoting with approval Edward J. Damich, The Visual Artists Rights Act of 1990: Toward A Federal System of Moral Rights Protection For Visual Art, 39 Cath.U.L.Rev. 945, 954 (1990) (emphasis added). Plaintiffs have established that the works of visual art in this litigation have been seen by millions of movie goers and subway riders; visited by busloads of school children; admired by thousands of tourists from all over the world; featured in movies, music videos, television shows, and commercial photo shoots; depicted in hundreds of other contexts online and are cherished by the local community. If these works of visual art do not have “recognized stature” under VARA, nothing does. II. Plaintiffs Have Met Their Burden Under Salinger For The Issuance of a Preliminary Injunction In the Second Circuit, a district court must undertake a four-prong inquiry to determine whether to grant a plaintiff’s motion for a preliminary injunction in a copyright case. First, the plaintiff must demonstrate “’either (a) a substantial likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation’.” Salinger v. Colting, 607 F.3d 68, 75 (2d Cir. 2010) quoting with approval NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476 (2d Cir. 2004). While the movant must establish facts to support a likelihood of success, she need not demonstrate a certainty of success. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985) (preliminary injunction may be granted even where there remains considerable room for doubt as to plaintiff’s likelihood of success). As set forth above, the Plaintiff artists have provided
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Hon. Frederic Block November 11, 2013 Page 3 overwhelming evidence that the works of visual art at issue in this litigation have the requisite “recognized stature” required by VARA. At the very least, Plaintiff artists have raised sufficiently serious questions going to the merits with regard to “recognized stature” to make their claims a fair ground for litigation. Second, the court may issue an injunction only if the plaintiff has demonstrated that she “is likely to suffer irreparable injury in the absence of an injunction.” Salinger, 607 F.3d 68, 79-80, quoting Winter v. National Resources Defense Council, 129 S. Ct. 365, 374 (2008) (“Winter”). In this action, the “irreparable injury” analysis is simple and straightforward. VARA rights are not economic rights. See William F. Patry, Copyright Law and Practice, Ch. 14, at 1021 (VARA rights "are intended to supplement the economic interests that form the basis of the Section 106 rights by protecting the author's personal association with his or her work."), quoted with approval in Carter v. HelmsleySpear, Inc, 852 F.Supp. 228, 232 (S.D.N.Y. 1994) (“Carter I”). As established in Carter I, “irreparable injury” under VARA turns on the injury the Plaintiff artists will suffer if they lose on the preliminary injunction but ultimately prevail on the merits. Id. The court must therefore pay particular attention to whether the “remedies available at law, such as monetary damages, are inadequate to compensate for that injury.” Salinger, 607 F.3d 68, 77, quoting ebay Inc. v. Merc Exchange, L.L.C., 547 U.S. 388, 391 (2006) (“ebay”). The Copyright Law defines a “work of visual art” as, among other things, “a painting, drawing, print or sculpture, existing in a single copy.…” 17 U.S.C. §101 (emphasis added). Therefore, because a “work of visual art” is both unique and original, it is also, by definition, irreplaceable – whether it is da Vinci’s The Last Supper in Milan or Jonathan Cohen’s Drunken Bulbs in Queens. Even if the works of visual art at issue in this litigation could somehow be reproduced exactly from photographs – which, of course, is not possible – Carter I specifically held that artists whose works are destroyed cannot be made whole by an award of money damages alone. Carter I, 852 F. Supp. 228, 232. In light of Defendants' stated intention to demolish the buildings that comprise “5Pointz”1 as soon as possible, Plaintiff artists have unequivocally demonstrated that they will suffer irreparable harm absent injunctive relief. See Affidavit of Gerald Wolkoff in Opposition, sworn to on October 17, 2013 at ¶22 (“In order to meet these critical deadlines, we are scheduled to start asbestos removal within the next three to four weeks, with demolition of the building scheduled to be completed by the beginning of 2014.”) Once the artworks at 5Pointz are obliterated by Defendants’ wrecking ball, this Court could never effectively reverse that action. Stated another way, if the works of visual art at 5Pointz are altered or destroyed while this action is pending, and if Plaintiff artists ultimately prevail on the merits of their suit, this Court would be left without the power to remedy the violation of their rights. Thus, Plaintiffs have demonstrated that they will be irreparably harmed absent preservation of the status quo.
Queens Block 86, Lots 1, 6, 7, 8 and 22, collectively referred to herein as “5Pointz”.
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Hon. Frederic Block November 11, 2013 Page 4 Third, the court must consider the balance of hardships between the parties, and issue the injunction only if the balance of hardships tips in plaintiff’s favor. Salinger, 607 F.3d 68, 80, quoting Winter, 129 S. Ct. 365, 374. Plaintiff artists have established – and Defendants do not dispute – that Defendants will destroy the works of visual art at issue in this action as soon as this Court allows them to do so. Defendants have already ignored this Court’s order and removed two of the 5Pointz artworks and damaged others. In contrast to Plaintiffs’ need to preserve their irreplaceable works of visual art, the damages alleged by Defendants are entirely speculative. Defendants claim that they will lose out on millions of dollars of tax credits if the project is not completed within a certain time frame. As Plaintiffs’ counsel has indicated during oral argument and history shows, however, the tax credits available to defendants can be extended. In addition, as the Court noted, Mr. Wolkoff has waited over 40-years to develop this property and an additional, brief delay while this matter is tried and decided will not cause Defendants any irreparable harm. Therefore, Defendants’ alleged damages do not support the denial of injunctive relief that Defendants are seeking. Fourth, the court must ensure that the “public interest would not be disserved” by the issuance of a preliminary injunction. Salinger, 607 F.3d 68, 80, quoting ebay, 547 U.S. 388, 391. The right of the public to have works of art which are not only a part of the national heritage of this country but also a part of the heritage of all mankind, made available for public view is a substantial one. See United States v. Herce, 334 F. Supp. 111, 113 (S.D.N.Y. 1971). The scope of the public’s interest in preserving the works of visual art at 5Pointz is further demonstrated by the fact that Plaintiff artists have collected over 13,000 individual New York City Landmarks Preservation Commission Request for Evaluation forms to submit this week. These Requests for Evaluation have been signed by a broad cross-section of society, ranging from graphic artist Shepard Fairey to hip-hop founder Clive Campbell aka Kool Herc, demonstrating that the public interest will, in fact, be disserved if the Plaintiff artists’ preliminary injunction application is denied Therefore, the public interest inquiry also comes down squarely on the side of granting Plaintiff artists the preliminary injunction they are seeking in this action. The Second Circuit has rejected the argument that the portion of the preliminary injunction standard involving “serious questions going to the merits” was eliminated by a series of Supreme Court decisions stating that a plaintiff seeking a preliminary injunction must show a likelihood of success on the merits. The Second Circuit has explained that its “serious questions” standard permits a district court to grant a preliminary injunction in situations where it cannot determine with certainty that the moving party is more likely than not to prevail on the merits of the underlying claims, but where the costs to the moving party outweigh the benefits of not granting the injunction. Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (“Citigroup”) (“The value of this circuit’s [“serious questions”] approach to assessing the merits of a claim at the preliminary injunction stage lies in its flexibility in the face of
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Hon. Frederic Block November 11, 2013 Page 5 varying factual scenarios and the greater uncertainties inherent at the outset of particularly complex litigation.”). The Second Circuit has also pointed out that where, as here, a factual dispute may render a fully reliable assessment of the merits impossible at the preliminary-injunction stage and “the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party [in the absence of such an injunction] will be certain and irreparable … the injunction usually will be granted.” Ohio Oil Co. v. Conway, 279 U.S. 813, 814 (1929). See also Citigroup, 598 F.3d 30, 37 (“The Supreme Court’s recent opinions in Munaf, Winter, and Nken have not undermined its approval of the more flexible approach signaled in Ohio Oil.”). Finding nothing in the Supreme Court’s jurisprudence that would foreclose application of the “serious questions” standard, the Second Circuit concluded that that standard remains valid. Citigroup, 598 F.3d 30, 38 (“We have found no command from the Supreme Court that would foreclose the application of our established ‘serious questions’ standard as a means of assessing a movant’s likelihood of success on the merits. The Second Circuit’s standard accommodates the needs of the district courts in confronting motions for preliminary injunctions in factual situations that vary widely in difficulty and complexity. Thus, we hold that our venerable standard for assessing a movant’s probability of success on the merits remains valid!….”). III. A Preliminary Injunction Would Prevent Irreparable Harm to The Works of Arts While Plaintiffs Explore Options to Preserve It 5Pointz is the Sistine Chapel of the Hip-Hop art world (or, if you will, its The Last Supper). During last week’s hearing, the Court expressed its skepticism as to whether Plaintiffs would ultimately prevail at trial – while at the same time acknowledging that this action presented novel questions of law and disputed issues of fact. Rather than rush to push 5Pointz under a bulldozer, Plaintiff artists respectfully propose that the Court issue a preliminary injunction to preserve these works of visual art while this action goes forward. This Court has the authority to issue injunctive relief as it deems appropriate to prevent irreparable harm, including the power to craft an injunction in any way, shape or form to accomplish its goal and prevent irreparable harm. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1272 (7th Cir. Ill. 1995) (district court ordinarily has wide latitude in fashioning injunctive relief); Williams v. City of Dothan, 818 F.2d 755, 765 (11th Cir. Ala. 1987) (district courts inherently possess broad powers in administering an equitable remedy such as an injunction); BAC Home Loans Servicing, L.P. v. Cowin, 2013 U.S. App. LEXIS 5237, *4 (5th Cir. Tex. Mar. 15, 2013) (district courts have wide latitude to make preliminary injunction rulings). Plaintiffs are attempting to avoid the irreparable harm that Defendants are threatening by coming up with an alternative plan to salvage the artworks. All of the proposed, alternative plans will require giving Plaintiffs adequate time to explore their options and pitch their proposals to city officials, agencies and cultural institutions.
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Hon. Frederic Block November 11, 2013 Page 6 A. Landmarks Designation Plaintiffs are submitting over 13,000 individual New York City Landmarks Preservation Commission Request for Evaluation forms to the New York Landmarks Commission on November 12, 2013. These Requests for Evaluation have been signed by thousands of ordinary New Yorkers as well as celebrities such as record producer Marley Marl (Marlon Williams), urban culture photographer Henry Chalfant, artist/actor Lee Quinones, DJ Afrika Bambaataa (Kevin Donovan), photo journalist Martha Cooper, artist Ron English, hip-hop pioneer and filmmaker Fab 5 Freddy (Fred Brathwathe), hip-hop founder Kool Herc (Clive Campbell) and graphic artist Shepard Fairey. Plaintiffs are aware that Landmarks Commission applications are complex undertakings that involve extensive documentation, a great deal of expertise and – most important of all – time. Plaintiffs are prepared to retain a landmarks consultant and, if necessary, a landmarks attorney to shepherd them successfully through this process as quickly as possible – but, of course, without a preliminary injunction any such efforts would be futile because 5Pointz would be long gone before the Landmarks Commission ever has a chance to review and decide the applications. The letter addressed to “Rebakah Kennedy,” which was submitted by Defendants’ counsel to the Court on Friday afternoon and raised again by Defendants in a second letter today, is meaningless. In the first place, it is common knowledge that Landmarks Commission applications are often rejected one or more times before any property is designated a landmark. Secondly, “Rebakah Kennedy” is not a party to this action, and Defendants have not established who she is, whether she acts for 5Pointz or what, if any, her relationship to 5Pointz may be. Further, it is completely unclear from the hearsay letter offered by Defendants (and objected to by Plaintiffs) what documentation was submitted in support of the application referenced in the letter, if any. The “Rebakah Kennedy” letter relied on by Defendants has no evidentiary value and should be ignored by this Court. B. Eminent Domain and the New City Administration Another option proposed by the Court was that the Plaintiffs work with the incoming de Blasio administration to determine whether New York City could help preserve the works of visual art at issue in this action. Mr. de Blasio will be sworn in on January 1, 2014, after which the usual transition-to-a-new-mayoral-administration turmoil will ensue. Plaintiff artists will not be able to do anything to present their claims to the new City administration until the transition has taken place and the new administration settles in. The critical issue at this juncture is time, which Plaintiff artists will not have unless this Court grants their application for a preliminary injunction.
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Hon. Frederic Block November 11, 2013 Page 7 C. Partnering with Another Cultural Organization A final option suggested by the Court was that Plaintiffs partner with another cultural organization to save 5Pointz in its entirety, including the works of visual art at issue in this action. Plaintiffs are eager to pursue this option, but any such partnership will take months to negotiate and consummate. Again, the critical issue is time, which is only available if this Court grants Plaintiffs the preliminary injunction they are seeking. IV. Defendants’ Motion To Dismiss The Court may recall that Defendants’ counsel made a verbal application last Thursday for a dismissal of Plaintiffs’ complaint. Although the Court correctly noted that Defendants’ application was premature since it was raised in the context of a preliminary injunction hearing, Defendants obviously believe this action can be resolved solely as a matter of law. Accordingly, another option for the Court to consider is issuing a preliminary injunction while the parties engage in motion practice to determine if this action can be resolved as a matter of law. The Court could issue the preliminary injunction to preserve the works pending the resolution of Defendants’ motion to dismiss. If the Defendants prevail as a matter of law, the complaint will be dismissed, the injunction will automatically be lifted and construction can proceed. Based on experience, it should not take more than a few months to brief and decide a motion to dismiss that is based solely on the allegations within the four corners of the Complaint. V. Conclusion In conclusion, Plaintiffs submit that the hearing evidence established that Plaintiffs are entitled to a preliminary injunction which will protect their one-of-a-kind works of visual art until this matter is tried and decided, or until Plaintiffs can pursue alternative means to save 5Pointz. Respectfully submitted, Jeannine Chanes Roland Acevedo Counsel for Plaintiffs JWC:id cc: David G. Ebert, Esq. (via email) Alissa G. Friedman, Esq. (via email) Mioko C. Tajika, Esq. (via email)
Cohen et al v. G&M Realty L.P. et al, Docket No. 1:13-cv-05612 (E.D.N.Y. Oct 10, 2013), Court Docket
Court Date Filed
United States District Court for the Eastern District of New York 2013-10-10 00:00:00
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