There is much to be learned from instances in which an artist wins a moral rights lawsuit involving the Visual Artists Rights Act. That piece of federal law, enacted in 1990 as an amendment to the U.S. Copyright Act, permits the author of a “work of visual art” the right
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
Some artists have prevailed when they brought action against a perceived wrong. In 1997, Jan Martin won the first lawsuit filed under the law, after his sculpture Symphony #1 was demolished by the City of Indianapolis, Indiana, which sought to make changes in a downtown neighborhood under an urban renewal plan and did not inform the artist of its intentions or allow him to retrieve his work. (The artist was awarded $20,000 in statutory damages in addition to attorney’s fees and other costs.) Four years later, the sculptor Audrey Flack sued when a nonprofit group that had commissioned her to erect a monument in Queens—for which she created the bronze casting molds and a thirty-five-foot-tall clay head—allowed the molds to become damaged and then unbeknownst to her hired one of Flack’s assistants to resculpt the face rather than Flack herself. (She brought a VARA lawsuit against the group, leading to an out-of-court settlement in the artist’s favor.) In 2008, the artist Kent Twitchell prevailed when he brought a VARA lawsuit against thirteen defendants, including the U.S. government, for destroying his mural Ed Ruscha Monument in 2006 by whitewashing the side of the building in Los Angeles where it had been painted back in 1987. (The two sides settled out of court for $1.1 million.)
The courts established that Martin’s work was of recognized stature, deserving VARA protection; that Flack was the “author” of her work, that no one else could change her work, and that the hiring of her assistant to make repairs constituted “gross negligence”; and that Twitchell had a right under the law to remove his work and to be given notification of changes that were planned for the building.
There have been more losses in artist-filed VARA lawsuits than wins, however. These examples demonstrate that artists should read and understand the law in full before filing these suits, rather than simply assuming that VARA applies to their particular case. The most recent defeat for an artist was handed down on November 14 by a district court in New York when it ruled that Steven Tobin’s Trinity Root sculpture, which had been installed outside downtown New York City’s venerable Trinity Church in 2005 as a memorial to the terrorist attacks of September 11, 2001, was removed in 2015 and transported to a church-owned site in Connecticut. The sculpture suffered a certain amount of damage during the move.
The sculpture was inspired by the sycamore tree in front of the 320-year-old church, which bore the brunt of the falling debris on September 11, saving the church from more extensive damage. Tobin, a sculptor who lives in Coopersburg, Pennsylvania, convinced the then-rector of the Episcopal church, Rev. James H. Cooper, to permit him to excavate the stump and roots of the tree so that he could create a bronze memorial to be placed at the site of the church. Tobin was not paid by the church, but he agreed to pay the entire cost—estimated in the lawsuit as over $1 million and requiring the artist to take out a second mortgage on his home—of creating The Trinity Root. Tobin was assured by Rev. Cooper that the artwork, fifteen feet wide and thirteen feet tall, would remain in the courtyard permanently.
This promise from Rev. Cooper, however, was only verbal. A formal written agreement between the artist and the church from 2004 states that “Tobin hereby transfers and assigns to Trinity by charitable donation all right, title, and interest to the Sculpture,” elaborating that:
In the event of any termination of this Agreement, Trinity will own the Sculpture . . . and will have the right to complete, exhibit and sell the Sculpture if it so chooses. . . . Tobin understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.
When Tobin was notified of the decision by the church, now under the leadership of a different rector, to move Trinity Root out of state, he objected, claiming that the artwork was “site-specific,” that moving it to a location unrelated to the events of 9/11 diminishes the sculpture and thereby the sculptor himself. The district court judge pointed, however, to the contract signed by the artist in which “the Agreement provides that it ‘constitutes the entire agreement between the parties . . . and may only be amended or modified by a written instrument executed by the duly authorized representatives of the parties.’”
On Tobin’s VARA claim that moving the artwork distorted it, Judge Lorna G. Schofield ruled that Trinity Root was not treated with any degree of “gross negligence” and affirmed what other courts around the country have held: that the federal law “does not apply to site-specific art at all.”
Indeed, this wasn’t the first time that the courts informed an artist that what he believed the law protected was not actually in the language of the law. David Phillips, a Boston sculptor, brought a lawsuit under the Visual Artists Rights Act against the private owner of a city park in Boston for wanting to rearrange the placement of twenty-seven sculptures he had been commissioned to create for that park in order to accommodate an improved public walkway and increase the number of plants. The artist claimed that his sculptures were “site-specific,” forbidding any change in the park. Two appellate rulings, in 2004 and 2006, ruled against the sculptor.
Though we may be sympathetic to these artists’ creative desires, we must ask if they are indeed fighting the good fight by arguing for what the law should say instead of what it does. In 1987, the sculptor Richard Serra launched a lawsuit against the federal government’s General Services Administration for removing his Tilted Arc, a public artwork that same agency had commissioned several years before for New York City’s Federal Building Plaza. Throughout the art world and beyond, people took sides, some arguing along with the artist that the federal government had violated both Serra’s first amendment rights and his artistic “moral rights,” while others condemned the sculpture as ugly and unresponsive to the people who worked at the site. In the end, Serra lost his case, not because the federal district court judge didn’t like Tilted Arc but because the contract the artist had signed permitted the federal agency to move the piece. Much has been made of the state of public art in the United States as a result of the Tilted Arc controversy, but the most important lesson for artists to draw from the outcome is that when you sign a contract, you’re bound by it.