Tough Love: Another VARA Claim, Thwarted

Tough Love: Another VARA Claim, Thwarted by Mark S. KaufmanThe Visual Artists Rights Act (VARA) was passed in 1990; but, to date, only around 15 artists have brought cases in attempts to enforce the rights it protects. That’s why it was notable when earlier this month a jury ruled against the developer of 5 Pointz, a case we blogged about earlier this year.

Recently, another plaintiff suing under VARA was not as lucky — or perhaps his argument just didn’t hold water.  This was a matter involving a three-ton sculpture called “The Sycamore Root”  by artist Steve Tobin that was installed, site specifically, at the Trinity Church in Lower Manhattan. The piece was meant to take the place of the century-old tree that had been there and was destroyed by the events of 9/11. One of the things that makes the piece very site-specific is that the artist claimed the DNA of the victims was part of the patina of this three-ton sculpture.

By all means the sculpture, cast in bronze, was a success. It became a fixture in the lower Manhattan 9/11 tourist circuit, so much so that the church’s new rector became alarmed at the throngs of crowds outside the church, none of whom were parishioners and all of whom took up valuable courtyard space. The new rector also felt the sculpture was ugly.

The church asserted that it lived up to its end of the contract it had with Tobin by first offering to pay to have the work transported back to his property. After Tobin ultimately refused to take the sculpture back,  he found out that they had already moved it to a location in Connecticut, and subsequently it was moved again to yet another location, also in Connecticut. Tobin asserted that it was damaged, and that the moving and the damage violated his rights.

One would think that the statute that protects against a visual artist’s work from being mutilated or destroyed would come into play, but in this case, the court found a) as a matter of contract law, Tobin had really given over ownership and all rights in the work to the church, and had expressly said the church could do what it wants with the work, and b) simply relocating the Sycamore Root does not itself constitute distortion, mutilation, or modification under VARA. There’s an exception to the prohibition against “modification,” which relates to public presentation, including placement of the work, and removal of the work from a specific location is within that exception.

The complaint also did not indicate that there was a reckless disregard of the plaintiff’s rights, but one of the things that was interesting to me is that the defendant admits the sculpture suffered some minor, repairable damage. The plaintiff said this damage was actually substantial, but the judge, as a matter of law, said the allegations that there was substantial damage were not enough to demonstrate or to plead gross negligence, and overcome the public presentation exclusion to a claim under VARA.

In reading the judgment, I asked myself, Why not? If a sculpture is moved and damaged during the move, and the plaintiff alleges that damage is substantial, are we just missing the magic words that the substantial damage resulted from the gross negligence of the defendant? If he just added that sentence, would that be enough? Because it certainly seems to me that if you move the sculpture and you damage it,  that’s exactly what the statute’s designed to protect.

As an interesting side note, Tobin actually hoisted himself on his own petard when, in his complaint, he indicated that the sculpture should be brought back and installed in the Trinity Church courtyard. This was inconsistent with his VARA claim that the work was destroyed, because if the claim were true, there should have been nothing that could be brought back to the church grounds.

Another interesting element is that Tobin really invested in this sculpture, refinancing his house in order to spend $1,000,000 on the thing. It was really an act of love, and an expensive one.
Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn
kaufman@kaufmankahn.com

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