The Court then held that the Plaintiffs’ works of aerosol art were works of “visual art” protected under VARA [17 U.S.C. Section 106A], which “gives the ‘author of a work of visual art’ the right to sue to prevent the destruction of [the] work if it is one of recognized stature”. Cohen v. G&M Realty L.P. 988 F. Supp. 2d 212, 214 (E.D.N.Y. 2013).
According to the District Court, in a decision rendered February 12, 2018, “[s]ince the Plaintiffs’ works were effectively destroyed, plaintiffs were relegated to seeking monetary relief under VARA”. VARA “permits the artist to seek monetary damages under [17 U.S.C.] Section 106A (a) (3) (A) if the work was distorted, mutilated, or otherwise modified to the prejudice of the artist’s honor or reputation”.
Under 17 U.S.C. Section 504 (‘Remedies for infringement; Damages and profits”), statutory damages can be awarded “in a sum of not less than $750 or more than $30,000 as the court considers just” but “[i]n a case where the copyright owner sustains the burden of proving, and the court finds, that the infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of no more than $150,000”. The Court, finding that the developer acted willfully in destroying the works of art, awarded statutory damages of $150,000 for each of 45 works of art for a total of $6,750,000. Damages for emotional distress were not recoverable. Cohen v. G&M Realty L.P., Case Nos. 13-CV-05612 and 15-CV-3230, is reported at 2018 U.S. Dist. LEXIS 22662 and 2018 WL 851374.