The First Circuit Misses the Boat Again

The First Circuit has done it again, with four days of its last opinion, this time in a VARA case. The result is right, but to me it misapprehends the right analysis. The case is Phillips v. Pembroke Real Estate, Inc., issued today. The case arises under the Visual Artists Rights Act (VARA), in particular whether artists granted the anemic rights in Section 106A were granted the right to prevent the removal of their work, even if not physically destroyed under the theory that removal by itself constitutes destruction. The court of appeals framed the issue incorrectly as: "Either VARA recognizes site-specific art and protects it, or it does not recognize site-specific art at all." That's not the issue; the issue us whether a work of visual art protected under Section 106A is protected against removal under the aforesaid theory. The answer to that is clearly no.

The purpose of VARA is “not . . to preserve a work of visual art where it is, but rather to preserve the work as it is.”[1] There is, in short, no right under VARA requiring a work of art to remain at the site of its original installation.
The legislative history states that removal of a work of art generally comes within the Section 106A(c) exclusion from liability because location is a matter of presentation.[2] Liability results only if in the process of removal, there is a destruction, mutilation, or other modifications to the work that are prejudicial to the artist’s honor or reputation, but in such an event it is those acts and not the mere fact of removal that gives rise to liability. Thus, actual physical alteration is required, not just hurt feelings or a strongly felt belief that the artist’s vision had been violated.[3] VARA is very clear on this point for a good reason: during its drafting, pitched cultural battles were taking place over the concept of “site-specific art.” The term generally refers to art created to exist in a specific site by virtue of its relationship to surrounding elements such as the landscape, other art, buildings, vista and the like. If a work of art is removed from its intended context, it is believed to have lost its identity, even hypothetically said to have been “destroyed.”[4] A well-known example is the removal of Richard Serra’s Tilted Arc from Foley Square in Manhattan. The removal of this sculpture was taking place when VARA was drafted, and Mr. Serra lobbied the House Subcommittee on the question. The previously quoted report language was written with Tilted Arc in mind, and indicates that Mr. Serra would not have had a cause of action under VARA (nor did he have one under Section 106, for that matter).[5] Removal of a work of visual art that is incorporated in a building (rather than being placed near the building or on its plaza or in its lobby) is treated separately in Section 113(d).
The contretemps over Tilted Arc was a cause celebre, and illustrates why Congress choose not to grant artists a right to insist on their work remaining at the site on which it was originally installed. Titled Arc was commissioned by the General Services Administration’s Arts-in-Architecture program. The sculpture was 120 feet long, 12 feet high, 2-1/2 inches thick and weighed 73 tons. It was of Cor-Ten steel, a manufacturing material that is particularly subject to external rust. Serra had worked in a steel mill and was quite familiar with Cor-Ten’s properties, seeking an unfinished, raw, rusting look. The piece was set in Federal Plaza, and was placed in a manner so as to cut-off one’s ability to walk across the space, in order to create a confrontation with those who used the space. Serra commented “I don’t think it the function of art to be pleasing. Art is not democratic. It is not for the people,” a sentiment that is at odds with the plaza as a public space, and a heavily traveled space at that: the Javits building directly in front of the plaza houses 10,000 employees alone, many of them in the GSA’s own regional office.

[1] Board of Managers of SOHO Int’l Arts Condominium v. City of New York, 2003 WL 21403333 at *10 (S.D.N.Y. June 17, 2003).)
[2] H.R. Rep. No. 514 at 17.
[3] H.R. Rep. No. 514 at 17.
[4] See generally Miwon Kwon, One Place After Nother: Site-Specific Art and Locational Indentity (2004); Nick Kaye, Site-Specific Art: Performance, Place and Documentation (2000); Space, Site, Intervention: Situating Installation Art (Erika Sunderburg ed. 2000).
[5] See Serra v. United States Gen. Servs. Admin., 847 F. 2d 1045 (2d Cir. 1988). Phillips v. Pembroke Real Estate, Inc. 288 F. Supp. 2d 89, 99-100 (D. Mass. 2003); Board of Managers of SOHO Int’l Arts Condo v. City of New York, 2003 WL 21403333 (S.D.N.Y. June 17 2003) (focus of VARA is “not. . . to preserve a work of visual art where it is, but rather to preserve the work as it is”), on reconsideration, 2003 WL 21767653) (S.D.N.Y., July 31, 2003) (“nowhere in VARA does the statute make any legal distinction between site-specific and free-standing works”); English v. BFC&R East 11th Street LLC, 1997 WL 74044 (S.D.N.Y. Dec. 3, 1997), aff’d summary order, 198 F. 3d 233 (2d Cir. 1999); on summary judgment, 2004 WL 1982520 (S.D.N.Y. Sept. 8, 2004), later proceeding, 2005 WL 1153752 (S.D.N.Y. May 13, 2005).

An interesting example of the same result occurring in Europe may be found in unsuccessful attempt, in November 1991, by the heirs of Soviet artist Nikolai Tomski to prevent the city of Berlin, Germany, from dismantling his huge sculpture of Vladimir Lenin in response to political changes.