Class 23: The Visual Artists Rights Act

Introduction

In Class 22, we learned about "moral rights," or the non-economic rights granted to copyright owners by many countries. We also learned that United States law may have tacitly granted moral rights in certain circumstances.

In this class, we will discuss the Visual Artists Rights Act of 1990, which explicitly grants certain moral moral rights to certain copyright owners, under certain circumstances.

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works is an international agreement governing copyright law, which was first formed in Berne, Switzerland in 1886, and was subsequently revised many times. Article 6bis of the Berne Convention provides that signatories must protect the moral rights of authors:

Article 6bis 

Moral Rights: 

1. To claim authorship; to object to certain modifications and other derogatory actions; 2. After the author's death; 3. Means of redress 

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. 

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained. 

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Questions:

1. When does Article 6bis grant moral rights to a copyright owner?
2. Can a copyright owner transfer the moral rights granted by Article 6bis? 

The Visual Artists Right Act

The United States signed the Berne Convention on March 1, 1989, but did not enact any legislation in order to comply with Article 6bis. Instead, Congress stated that United States law effectively protected the rights granted by the Berne Convention. Many people argues that United States copyright law did not adequately protect the moral rights promised by Article 6bis.

As a result, Congress passed the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A, which granted certain rights to certain authors:

17 U.S.C § 106A

Rights of certain authors to attribution and integrity

(a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art— 

(1) shall have the right— 

(A) to claim authorship of that work, and 

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; 

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and 

(3) subject to the limitations set forth in section 113(d), shall have 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. 

(b) Scope and Exercise of Rights.— Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work. 

(c) Exceptions.— 

(1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A). 

(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence. 

(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a). 

(d) Duration of Rights.— 

(1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author. 

(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106. 

(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author. 

(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire. 

(e) Transfer and Waiver.— 

(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. 

(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.

Essentially, VARA grants limited rights of attribution and integrity to authors of works of visual art. The Copyright Act provides:

A “work of visual art” is— 

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or 

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include— 

(A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; 

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; 

(iii) any portion or part of any item described in clause (i) or (ii); 

(B) any work made for hire; or 

(C) any work not subject to copyright protection under this title.

The author of a work of visual art is entitled to claim VARA rights, even after transferring the copyright in the work to another. In addition, the author of a work of visual art is entitled to claim VARA rights, even if they do not qualify for copyright protection based on their country of origin under 17 U.S.C. § 104.

Unlike the other exclusive rights of copyright owners, VARA rights only last for the life of the author. In addition, VARA rights can be waived.

The Attribution Right

VARA grants a limited attribution right to authors of works of visual art. It enables them to claim authorship of the works they create, to disclaim authorship of works they did not create, and to prevent the attribution of altered works. Notably, the attribution right does not apply to reproductions in commercial media.

The Integrity Right

VARA also grants a limited integrity right to authors of works of visual art. Essentially, it enables authors of certain kinds of works to prevent the destruction or alteration of those works, under certain circumstances. Notably, the integrity right is limited to works of "recognized stature," a term that is not defined in the Copyright Act.

Questions:

1. What kinds of works does VARA protect? What kinds of works does it not protect?
2. Are the rights granted by VARA equivalent to the rights promised by Article 6bis of the Berne Convention?
3. VARA rights can be waived, but Berne Convention rights cannot. Why?

Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994)

CARDAMONE, Circuit Judge: 

Defendants 474431 Associates and Helmsley-Spear, Inc. (defendants or appellants), as the owner and managing agent respectively, of a commercial building in Queens, New York, appeal from an order of the United States District Court for the Southern District of New York (Edelstein, J.), entered on September 6, 1994 following a bench trial. The order granted plaintiffs, who are three artists, a permanent injunction that enjoined defendants from removing, modifying or destroying a work of visual art that had been installed in defendants' building by plaintiffs-artists commissioned by a former tenant to install the work. See Carter v. Helmsley-Spear, Inc., 861 F.Supp. 303 (S.D.N.Y.1994). Defendants also appeal from the dismissal by the trial court of their counterclaim for waste. Plaintiffs cross-appeal from the dismissal of their cause of action for tortious interference with contractual relations and from the denial of their requests to complete the work and for an award of attorney's fees and costs. 

On this appeal we deal with an Act of Congress that protects the rights of artists to preserve their works. One of America's most insightful thinkers observed that a country is not truly civilized "where the arts, such as they have, are all imported, having no indigenous life." 7 Works of Ralph Waldo Emerson, Society and Solitude, Chapt. II Civilization 34 (AMS. ed. 1968). From such reflection it follows that American artists are to be encouraged by laws that protect their works. Although Congress in the statute before us did just that, it did not mandate the preservation of art at all costs and without due regard for the rights of others. 

For the reasons that follow, we reverse and vacate the grant of injunctive relief to plaintiffs and affirm the dismissal by the district court of plaintiffs' other claims and its dismissal of defendants' counterclaim for waste. 

BACKGROUND 

Defendant 474431 Associates (Associates) is the owner of a mixed use commercial building located at 47-44 31st Street, Queens, New York, which it has owned since 1978. Associates is a New York general partnership. The general partners are Alvin Schwartz and Supervisory Management Corp., a wholly- owned subsidiary of Helmsley Enterprises, Inc. Defendant Helmsley-Spear, Inc. is the current managing agent of the property for Associates. 

On February 1, 1990 Associates entered into a 48-year net lease, leasing the building to 47-44 31st Street Associates, L.P. (Limited Partnership), a Delaware limited partnership. From February 1, 1990 until June 1993, Irwin Cohen or an entity under his control was the general partner of the Limited Partnership, and managed the property through Cohen's SIG Management Company (SIG). Corporate Life Insurance Company (Corporate Life) was a limited partner in the Limited Partnership. In June 1993 SIG ceased its involvement with the property and Corporate Life, through an entity controlled by it, became the general partner of the Limited Partnership. The property was then managed by the Limited Partnership, through Theodore Nering, a Corporate Life representative. See 861 F.Supp. at 312. There is no relationship, other than the lease, between Associates, the lessor, and the Limited Partnership, the lessee. 

Plaintiffs John Carter, John Swing and John Veronis (artists or plaintiffs) are professional sculptors who work together and are known collectively as the "Three-J's" or "Jx3." On December 16, 1991 SIG entered into a one-year agreement with the plaintiffs "engag[ing] and hir[ing] the Artists ... to design, create and install sculpture and other permanent installations" in the building, primarily the lobby. Under the agreement plaintiffs had "full authority in design, color and style," and SIG retained authority to direct the location and installation of the artwork within the building. The artists were to retain copyrights to their work and SIG was to receive 50 percent of any proceeds from its exploitation. On January 20, 1993 SIG and the artists signed an agreement extending the duration of their commission for an additional year. When Corporate Life became a general partner of the Limited Partnership, the Limited Partnership assumed the agreement with plaintiffs and in December 1993 again extended the agreement. 

The artwork that is the subject of this litigation is a very large "walk-through sculpture" occupying most, but not all, of the building's lobby. The artwork consists of a variety of sculptural elements constructed from recycled materials, much of it metal, affixed to the walls and ceiling, and a vast mosaic made from pieces of recycled glass embedded in the floor and walls. Elements of the work include a giant hand fashioned from an old school bus, a face made of automobile parts, and a number of interactive components. These assorted elements make up a theme relating to environmental concerns and the significance of recycling. 

The Limited Partnership's lease on the building was terminated on March 31, 1994. It filed for bankruptcy one week later. The property was surrendered to defendant Associates on April 6, 1994 and defendant Helmsley- Spear, Inc. took over management of the property. Representatives of defendants informed the artists that they could no longer continue to install artwork at the property, and instead had to vacate the building. These representatives also made statements indicating that defendants intended to remove the artwork already in place in the building's lobby. 

As a result of defendants' actions, artists commenced this litigation. On April 26, 1994 the district court issued a temporary restraining order enjoining defendants from taking any action to alter, deface, modify or mutilate the artwork installed in the building. In May 1994 a hearing was held on whether a preliminary injunction should issue. The district court subsequently granted a preliminary injunction enjoining defendants from removing the artwork pending the resolution of the instant litigation. See Carter v. Helmsley-Spear, Inc., 852 F.Supp. 228 (S.D.N.Y.1994). 

A bench trial was subsequently held in June and July 1994, at the conclusion of which the trial court granted the artists the permanent injunction prohibiting defendants from distorting, mutilating, modifying, destroying and removing plaintiffs' artwork. Carter v. Helmsley-Spear, Inc., 861 F.Supp. 303, 337 (S.D.N.Y.1994). The injunction is to remain in effect for the lifetimes of the three plaintiffs. Plaintiffs' other claims, including their cause of action for tortious interference and a request for an award of costs and attorney's fees and that they be allowed to continue to add to the artwork in the lobby, as well as defendants' counterclaim for waste, were all dismissed with prejudice. This appeal and cross-appeal followed. 

DISCUSSION 

I. Artists' Moral Rights 

A. History of Artists' Moral Rights 

Because it was under the rubric of the Visual Artists Rights Act of 1990 that plaintiffs obtained injunctive relief in the district court, we must explore, at least in part, the contours of that Act. In doing so it is necessary to review briefly the concept of artists' moral rights and the history and development of those rights in American jurisprudence, which led up to passage of the statute we must now examine. 

The term "moral rights" has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved. See Ralph E. Lerner & Judith Bresler, Art Law 417 (1989) (Art Law). Because they are personal to the artist, moral rights exist independently of an artist's copyright in his or her work. See, e.g., 2 Nimmer on Copyright 8D-4 & n. 2 (1994) (Nimmer). 

While the rubric of moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence: attribution and integrity. See Art Law at 420. The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author's work from being attributed to someone else, and to prevent the use of the author's name on works created by others, including distorted editions of the author's original work. See, e.g., id. at 419- 20; Nimmer at 8D-5. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title in the work has been transferred. See, e.g., Art Law at 420.

In some jurisdictions the integrity right also protects artwork from destruction. Whether or not a work of art is protected from destruction represents a fundamentally different perception of the purpose of moral rights. If integrity is meant to stress the public interest in preserving a nation's culture, destruction is prohibited; if the right is meant to emphasize the author's personality, destruction is seen as less harmful than the continued display of deformed or mutilated work that misrepresents the artist and destruction may proceed. See Art Law at 421; see also 2 William F. Patry, Copyright Law and Practice 1044 n. 128 (1994) (Copyright Law ) (noting the different models but suggesting that "destruction of a work shows the utmost contempt for the artist's honor or reputation"). 

Although moral rights are well established in the civil law, they are of recent vintage in American jurisprudence. Federal and state courts typically recognized the existence of such rights in other nations, but rejected artists' attempts to inject them into U.S. law. See, e.g., Vargas v. Esquire, Inc., 164 F.2d 522, 526 (7th Cir.1947); Crimi v. Rutgers Presbyterian Church, 194 Misc. 570, 573-76 (N.Y.Sup.Ct.1949). Nonetheless, American courts have in varying degrees acknowledged the idea of moral rights, cloaking the concept in the guise of other legal theories, such as copyright, unfair competition, invasion of privacy, defamation, and breach of contract. See Nimmer at 8D-10; Art Law at 423. 

In the landmark case of Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir.1976), we relied on copyright law and unfair competition principles to safeguard the integrity rights of the "Monty Python" group, noting that although the law "seeks to vindicate the economic, rather than the personal rights of authors ... the economic incentive for artistic ... creation ... cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent." Id. at 24. Because decisions protecting artists rights are often "clothed in terms of proprietary right in one's creation," we continued, "they also properly vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form." Id. 

Artists fared better in state legislatures than they generally had in courts. California was the first to take up the task of protecting artists with the passage in 1979 of the California Art Preservation Act, Cal.Civ.Code s 987 et seq. (West 1982 & Supp.1995), followed in 1983 by New York's enactment of the Artist's Authorship Rights Act, N.Y.Arts & Cult. Aff. Law s 14.03 (McKinney Supp.1995). Nine other states have also passed moral rights statutes, generally following either the California or New York models. See generally Art Law at 430-35; id. at 301-09 (Supp.1992) (describing the different states' laws). 

B. Visual Artists Rights Act of 1990 

Although bills protecting artists' moral rights had first been introduced in Congress in 1979, they had drawn little support. See Copyright Law at 1018 n. 1. The issue of federal protection of moral rights was a prominent hurdle in the debate over whether the United States should join the Berne Convention, the international agreement protecting literary and artistic works. Article 6bis of the Berne Convention protects attribution and integrity, stating in relevant part: Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S.Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986). 

The Berne Convention's protection of moral rights posed a significant difficulty for U.S. adherence. See Copyright Law at 1022 ("The obligation of the United States to provide droit moral ... was the single most contentious issue surrounding Berne adherence."); Nimmer at 8D-15 ("During the debate over [the Berne Convention Implementation Act], Congress faced an avalanche of opposition to moral rights, including denunciations of moral rights by some of the bill's most vociferous advocates."); H.R.Rep. No. 514, 101st Cong., 2d Sess. 7 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6917 ("After almost 100 years of debate, the United States joined the Berne Convention.... [C]onsensus over United States adherence was slow to develop in large part because of debate over the requirements of Article 6bis."). 

Congress passed the Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, 102 Stat. 2853 (1988), and side-stepped the difficult question of protecting moral rights. It declared that the Berne Convention is not self-executing, existing law satisfied the United States' obligations in adhering to the Convention, its provisions are not enforceable through any action brought pursuant to the Convention itself, and neither adherence to the Convention nor the implementing legislation expands or reduces any rights under federal, state, or common law to claim authorship of a work or to object to any distortion, mutilation, or other modification of a work. See id. ss 2, 3; see also S.Rep. No. 352, 100th Cong., 2d Sess. 9-10 (1988), reprinted in 1988 U.S.C.C.A.N. 3706, 3714-15. 

Two years later Congress enacted the Visual Artists Rights Act of 1990 (VARA or Act), Pub.L. No. 101-650 (tit. VI), 104 Stat. 5089, 5128-33 (1990). Construing this Act constitutes the subject of the present appeal. The Act protects both the reputations of certain visual artists and the works of art they create. It provides these artists with the rights of "attribution" and "integrity." ... These rights are analogous to those protected by Article 6bis of the Berne Convention, which are commonly known as "moral rights." The theory of moral rights is that they result in a climate of artistic worth and honor that encourages the author in the arduous act of creation. H.R.Rep. No. 514 at 5 (internal quote omitted). The Act brings to fruition Emerson's insightful observation. 

Its principal provisions afford protection only to authors of works of visual art--a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer. 17 U.S.C. s 101 (Supp. III 1991). With numerous exceptions, VARA grants three rights: the right of attribution, the right of integrity and, in the case of works of visual art of "recognized stature," the right to prevent destruction. 17 U.S.C. s 106A (Supp. III 1991). For works created on or after June 1, 1991--the effective date of the Act--the rights provided for endure for the life of the author or, in the case of a joint work, the life of the last surviving author. The rights cannot be transferred, but may be waived by a writing signed by the author. Copyright registration is not required to bring an action for infringement of the rights granted under VARA, or to secure statutory damages and attorney's fees. 17 U.S.C. ss 411, 412 (1988 & Supp. III 1991). All remedies available under copyright law, other than criminal remedies, are available in an action for infringement of moral rights. 17 U.S.C. s 506 (1988 & Supp. III 1991). With this historical background in hand, we pass to the merits of the present litigation. 

II Work of Visual Art 

Because VARA is relatively new, a fuller explication of it is helpful. In analyzing the Act, therefore, we will follow in order the definition set forth in s 101, as did the district court when presiding over this litigation. The district court determined that the work of art installed in the lobby of Associates' building was a work of visual art as defined by VARA; that distortion, mutilation, or modification of the work would prejudice plaintiffs' honor and reputations; that the work was of recognized stature, thus protecting it from destruction (including removal that would result in destruction); and that Associates consented to or ratified the installation of the work in its building. The result was that defendants were enjoined from removing or otherwise altering the work during the lifetimes of the three artists. 

A. Singleness of the Work 

As a preliminary matter, we must determine whether the trial court correctly found that the work is a single piece of art, to be analyzed under VARA as a whole, rather than separate works to be considered individually. This finding was a factual one reviewed under the clearly erroneous standard. For purposes of framing the issues at trial the parties entered into a joint stipulation relating to numerous facts, including a definition of "the Work." This stipulated definition contained a long, detailed list of all the sculptural elements contained in the building's lobby. The district court found that, with a few precise exceptions determined to be separate works of art, the artwork created by plaintiffs in the lobby was a single work. See 861 F.Supp. at 314-15. This finding was based on testimony, credited by the trial judge, of the artists themselves and of their expert witnesses.
The trial court found further support for its conclusion in the method by which the artists created the work--each additional element of the sculpture was based on the element preceding it so that they would mesh together. The result was a thematically consistent, inter-related work whose elements could not be separated without losing continuity and meaning. See id. at 315. The record evidence of singleness was confirmed at the request of the parties by the district court's own inspection of the work. 

Appellants' primary contention is that the finding of singleness is inconsistent with a finding that certain works of art were separate from the work that is the subject of this appeal. This assertion rests on the mistaken belief that the parties' joint stipulation to a definition of "the Work" precluded an ultimate determination by the factfinder that most but not all of the work installed in the lobby was a single artwork. In other words, according to appellants, either every component in the stipulated definition is part of a single work or every component is an individual work; there is no middle ground. Appellants' goal is to have VARA applied to each element of the sculpture individually, so that components that may not be visual art standing alone cannot be considered visual art when they are combined by the artists to create a whole that has a nature different than the mere sum of its parts. 

Appellants' goal is not attainable. The parties stipulated that when they used the term "the Work" it included a list of sculptural components. The result was that during the trial there was no dispute as to the parties' meaning when referring to "the Work." The trial court was free to find that a few items of "the Work" were separate works of art, while the remainder of "the Work" was a single, interrelated, indivisible work of art. The finding of singleness was based on determinations of witness credibility as well as the district court's own inspection of the artwork. We cannot say that such a finding was clearly erroneous. 

B. The Statutory Definition 

A "work of visual art" is defined by the Act in terms both positive (what it is) and negative (what it is not). In relevant part VARA defines a work of visual art as "a painting, drawing, print, or sculpture, existing in a single copy" or in a limited edition of 200 copies or fewer. 17 U.S.C. s 101. Although defendants aver that elements of the work are not visual art, their contention is foreclosed by the factual finding that the work is a single, indivisible whole. Concededly, considered as a whole, the work is a sculpture and exists only in a single copy. Therefore, the work satisfies the Act's positive definition of a work of visual art. We next turn to the second part of the statutory definition--what is not a work of visual art. 

The definition of visual art excludes "any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audio-visual work." 17 U.S.C. s 101. Congress meant to distinguish works of visual art from other media, such as audio-visual works and motion pictures, due to the different circumstances surrounding how works of each genre are created and disseminated. See H.R.Rep. No. 514 at 9. Although this concern led to a narrow definition of works of visual art, [t]he courts should use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of the definition. Artists may work in a variety of media, and use any number of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used. Id. at 11. 

"Applied art" describes "two- and three-dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects." Carter, 861 F.Supp. at 315, citing Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989, 997 (2d Cir.1980). Defendants' assertion that at least parts of the work are applied art appears to rest on the fact that some of the sculptural elements are affixed to the lobby's floor, walls, and ceiling--all utilitarian objects. Interpreting applied art to include such works would render meaningless VARA's protection for works of visual art installed in buildings. A court should not read one part of a statute so as to deprive another part of meaning. See, e.g., United States Nat'l Bank of Or. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, ----, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402 (1993); United States v. LaPorta, 46 F.3d 152, 156 (2d Cir.1994).
Appellants do not suggest the entire work is applied art. The district court correctly stated that even if components of the work standing alone were applied art, "nothing in VARA proscribes protection of works of visual art that incorporate elements of, rather than constitute, applied art." 861 F.Supp. at 315. VARA's legislative history leaves no doubt that "a new and independent work created from snippets of [excluded] materials, such as a collage, is of course not excluded" from the definition of a work of visual art. H.R.Rep. No. 514 at 14. The trial judge correctly ruled the work is not applied art precluded from protection under the Act. 

III Work Made for Hire 

Also excluded from the definition of a work of visual art is any work made for hire. 17 U.S.C. s 1012(B). A "work made for hire" is defined in the Copyright Act, in relevant part, as "a work prepared by an employee within the scope of his or her employment." Id. s 101(1). Appellants maintain the work was made for hire and therefore is not a work of visual art under VARA. The district court held otherwise, finding that the plaintiffs were hired as independent contractors. 

A. Reid Tests 

The Copyright Act does not define the terms "employee" or "scope of employment." In Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), the Supreme Court looked to the general common law of agency for guidance. It held that a multi-factor balancing test was required to determine if a work was produced for hire (by an employee) or was produced by an independent contractor. Reid, 490 U.S. at 751, 109 S.Ct. at 2178. The Court elaborated 13 specific factors: the hiring party's right to control the manner and means by which the product is accomplished.... the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Reid, 490 U.S. at 751-52, 109 S.Ct. at 2178-79. While all of these factors are relevant, no single factor is determinative. Id. at 752. See also Hilton International Company v. NLRB, 690 F.2d 318, 321 (2d Cir.1982). Instead, the factors are weighed by referring to the facts of a given case. See Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir.1992). 

The district court determined that the sculpture was not "work for hire" and therefore not excluded from the definition of visual art. The Reid test is a list of factors not all of which may come into play in a given case. See Aymes, 980 F.2d at 861. The Reid test is therefore easily misapplied. We are usually reluctant to reverse a district court's factual findings as to the presence or absence of any of the Reid factors and do so only when the district court's findings are clearly erroneous. By contrast, the ultimate legal conclusion as to whether or not the sculpture is "work for hire" is reviewed de novo. The district court correctly stated the legal test. But some of its factual findings, we think, were clearly erroneous. 

B. Factors Applied 

The district court properly noted that Aymes established five factors which would be relevant in nearly all cases: the right to control the manner and means of production; requisite skill; provision of employee benefits; tax treatment of the hired party; whether the hired party may be assigned additional projects. See 980 F.2d at 861. Analysis begins with a discussion of these factors. 

First, plaintiffs had complete artistic freedom with respect to every aspect of the sculpture's creation. Although the artists heeded advice or accepted suggestions from building engineers, architects, and others, such actions were not a relinquishment of their artistic freedom. The evidence strongly supports the finding that plaintiffs controlled the work's "manner and means." This fact, in turn, lent credence to their contention that they were independent contractors. See Hilton, 690 F.2d at 320. While artistic freedom remains a central factor in our inquiry, the Supreme Court has cautioned that "the extent of control the hiring party exercises over the details of the product is not dispositive." Reid, 490 U.S. at 752, 109 S.Ct. at 2179. Hence, resolving the question of whether plaintiffs had artistic freedom does not end the analysis. 

The district court also correctly found the artists' conception and execution of the work required great skill in execution. Appellants' contention that the plaintiffs' reliance on assistants in some way mitigates the skill required for this work is meritless, particularly because each of the plaintiffs is a professional sculptor and the parties stipulated that professional sculpting is a highly skilled occupation. The right to control the manner and means and the requisite skill needed for execution of this project were both properly found by the district court to weigh against "work for hire" status. 

The trial court erred, however, when it ruled that the defendants could not assign the artists additional projects. First, the employment agreement between SIG Management Company and the artists clearly states that the artists agreed not only to install the sculpture but also to "render such other related services and duties as may be assigned to [them] from time to time by the Company." By the very terms of the contract the defendants and their predecessors in interest had the right to assign other related projects to the artists. The district court incorrectly decided that this language supported the artists' claim to be independent contractors. While the artists' obligations were limited to related services and duties, the defendants nonetheless did have the right to assign to plaintiffs work other than the principal sculpture. 

Further, the defendants did, in fact, assign such other projects. The district court concedes as much, explaining that "plaintiffs did create art work on the property other than that in the Lobby." Carter, 861 F.Supp. at 319. The record shows the artists performed projects on the sixth floor of the building, on the eighth floor, and in the boiler room. Thus, on at least three different occasions the plaintiffs were assigned additional projects, which they completed without further compensation. The trial court suggests this fact "does not undermine plaintiffs' contention that they were hired solely to install art work on the Property." Id. We disagree. If the artists were hired to perform work other than the sculpture (as both their employment agreement and their actual practice suggests) then they were not hired solely to install the sculpture. It makes no difference that all work performed by the plaintiffs was artistic in nature. The point is that the performance of other assigned work not of the artists' choosing supports a conclusion that the artists were not independent contractors but employees. 

We must also consider factors the district court correctly found to favor finding the sculpture to be work for hire. Specifically, the provision of employee benefits and the tax treatment of the plaintiffs weigh strongly in favor of employee status. The defendants paid payroll and social security taxes, provided employee benefits such as life, health, and liability insurance and paid vacations, and contributed to unemployment insurance and workers' compensation funds on plaintiffs' behalf. Moreover, two of the three artists filed for unemployment benefits after their positions were terminated, listing the building's management company as their former employer. Other formal indicia of an employment relationship existed. For instance, each plaintiff was paid a weekly salary. The artists also agreed in their written contract that they would work principally for the defendants for the duration of their agreement on a 40-hour per week basis and they would only do other work to the extent that it would not "interfere with services to be provided" to the defendants. All of these facts strongly suggest the artists were employees. 

Some of the other Reid factors bolster this view. The artists were provided with many (if not most) of the supplies used to create the sculpture. This factor was not, as the district court found, "inconclusive." The court also wrongly ruled that plaintiffs were hired for a "finite term of engagement." In fact, they were employed for a substantial period of time, their work continuing for over two years with no set date of termination (other than the sculpture's completion). Nor was the fact that the artists could not hire paid assistants without the defendants' approval "inconclusive" as the trial court erroneously found. Instead, this and the other just enumerated factors point towards an employer-employee relationship between the parties. 

In reaching its conclusion, the district court also relied partly on the artists' copyright ownership of the sculpture, viewing such ownership as a "plus factor." We are not certain whether this element is a "plus factor," and therefore put off for another day deciding whether copyright ownership is probative of independent contractor status. Even were it to be weighed as a "plus factor," it would not change the outcome in this case. 

C. Employee Status 

Our review of the legal conclusion drawn from balancing the various Reid factors persuades us that the factors that weigh in favor of finding the artists were employees outweigh those factors supporting the artists' claim that they were independent contractors. One of the factors that did not persuade us was the appellants' simplistic contention that usage of the words "employ" or "employment" in the agreements between the artists and SIG or the Limited Partnership establishes that the plaintiffs were employees. The use of these terms does not transform them into "magic words" imbued with legally controlling significance. 

Again, we emphasize that despite the conclusion reached we do not intend to marginalize factors such as artistic freedom and skill, making them peripheral to the status inquiry. The fact that artists will always be retained for creative purposes cannot serve to minimalize this factor of the Reid test, even though it will usually favor VARA protection. Also, that the work was produced on the employer's premises is a necessary incident to all nonremovable art and therefore should not carry great weight. Similarly, we were not swayed by the boilerplate contract language or the accounting decision to deduct FICA taxes. To so read s 101 runs against the broad remedial purposes of VARA. As discussed earlier, the moral rights of the artist whose artistic work comes under VARA's umbrella are to be protected, not ignored, in light of Congress' pathbreaking legislation. 

Moreover, because the Reid test is fact-dependent, future cases involving the work for hire question will not always fit neatly into an employee or independent contractor category. We also recognize that by counting indicia such as health insurance and paid vacations against the artists' independent contractor status, it may appear that artists regrettably are being forced to choose between the personal benefits inuring in an employment relationship and VARA's protection of the artists' work afforded only to independent contractors. Of course, when an employer today denies an artist "basic attributes of employment" like vacation time or health benefits, such denial will be wholly inconsistent with a "work for hire" defense. See Aymes, 980 F.2d at 862-63. 

Consequently, while the existence of payroll formalities alone would not be controlling, see Reid, 490 U.S. at 743 n. 8, 109 S.Ct. at 2174 n. 8, in combination with other factors, it may lead to a conclusion that a given work is one made for hire. Such other factors include: plaintiffs under their contract could be and were in fact assigned projects in addition to the work in the lobby; they were paid a weekly salary for over two years for a contracted 40 hours of work per week; they were furnished many of the needed supplies necessary to create the work; and plaintiffs could not hire paid assistants without defendants' consent. These factors, properly considered and weighed with the employee benefits granted plaintiffs and the tax treatment accorded them, are more than sufficient to demonstrate that the artists were employees, and the sculpture is therefore a work made for hire as a matter of law. 

IV Defendants' Counterclaim and Plaintiffs' Cross-appeal 

Finally, since we have determined that the work is one made for hire and therefore outside the scope of VARA's protection, we need not discuss that Act's broad protection of visual art and the protection it affords works of art incorporated into a building. Also, as plaintiffs' sculpture was not protected from removal because the artists were employees and not independent contractors, we need not reach the defendants' Fifth Amendment takings argument. 

Moreover, because the sculpture is not protected by VARA from removal resulting in its destruction or alteration, we do not address plaintiffs' contentions that VARA entitles them to complete the "unfinished" portion of the work, that they are entitled to reasonable costs and attorney's fees, and that appellants tortiously interfered with the artists' contract with SIG and the Limited Partnership. Finally, the district court dismissed defendants' counterclaim against the artists for waste, finding, inter alia, that such a cause of action under New York law may only be brought by a landlord against a tenant. See 861 F.Supp. at 334-36. Appellants have failed to persuade us that it was error to dismiss this counterclaim. 

CONCLUSION

Accordingly, the district court's order insofar as it held the work was one not made for hire is reversed and the injunction vacated. In all other respects, the order of the district court is affirmed. Each party to bear its own costs.

Installation Artwork by Jx3 (John Carter, John Swing and John Veronis)

Questions:

1. The court held that the trial court could find that some of the sculptural components were part of a single work and others were independent works. Do you agree with its conclusion? Who should define the scope of a work of visual art under VARA?
2. The court held that the works in question were not works of "applied art." Do you agree?
3. The court held that the works in question were "works made for hire," because the authors were employees. Do you agree?

Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006)

LIPEZ, Circuit Judge. 

This case raises important questions about the application of the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A, to "site-specific art", which is a subset of "integrated art". A work of "integrated art" is comprised of two or more physical objects that must be presented together as the artist intended for the work to retain its meaning and integrity. In a work of "site-specific art", one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it. 

David Phillips brought suit against Pembroke Real Estate, Inc. in federal district court, asserting that the removal of any or all of his work, consisting of multiple pieces of sculpture and stonework, from Eastport Park in South Boston would violate his statutory rights under VARA and the Massachusetts Art Preservation Act ("MAPA"), Mass. Gen. Laws ch. 231, § 85S. The district court ruled that VARA recognized integrated art, and that most of Phillips' sculptures and stonework in the Park constituted "one integrated 'work of visual art'" with the remaining pieces being "individual free-standing pieces of sculpture, which are not integrated into the other pieces." It also held that Phillips' integrated work of art was an example of site-specific art. But the court held that Pembroke could remove Phillips' works from the Park pursuant to VARA's so-called "public presentation" exception. See 17 U.S.C. § 106A(c)(2). 

Phillips challenges that reading of the public presentation exception on appeal. Although we disagree with the district court's reasoning (we hold that VARA does not apply to site-specific art at all), we affirm the decision of the district court permitting Pembroke to remove Phillips' works from the Park. 

Phillips is a nationally recognized sculptor who works primarily with stone and bronze forms that he integrates into local environs. In many of his sculptures, the design of the stones is incorporated into the landscape; such as a private project in Ogunquit, Maine, where a band of rock was extended into a bronze tributary in the ground, which, in sunlight, glistened like a nearby stream. In some of his other works, Phillips has merged metals or polished stone with aged, naturally-shaped boulders. 

Phillips' commissioned work from the past twenty years can be found at private companies and universities and in public spaces across the United States; in places such as Massachusetts, Washington, D.C., New York, and Utah and internationally in places such as Tokyo, Japan and Colombia. His work has been profiled in both Japanese and American art magazines, and featured in galleries and museums in, among many places, New York City and Maine. His 1993 promotional brochure details his artistic themes: 

It is Phillips' inherent reverence for natural beauty in this ecologically ravaged world that influences all his decisions, particularly when he recontextualizes a stone by replacing part of its form with a man-made surrogate or when he gracefully applies typical landscaping and architectural materials along with natural stone and traditional art materials into new equations of form and function. 

Eastport Park (the "Park"), which was completed in its current form in the spring of 2000, is located across from Boston Harbor in the South Boston Waterfront District. The Park is roughly rectangular in shape. Its borders are formed by the World Trade Center East Office building to the west, D Street to the east, Seaport Boulevard to the north, and New Congress Street to the south. The Park is a public sculpture park with a nautical theme. 

In addition to Phillips, three other artists also crafted art located in the Park. Japanese sculptor Susumu Shingu created tall kinetic sculptures, Judy McKie contributed bronze, fish-shaped benches, and landscape architect Craig Halvorson designed a pergola (a shady resting place, made of rustic work or latticework on which plants, such as climbing shrubs or vines, are grown). The Park also contains paths that are inlaid with granite paving stones, large granite boulders, and flora meant to evoke an aquatic environment.
9Defendant Pembroke Real Estate, Inc. ("Pembroke"), a Fidelity Investments company, leases the land on which the Park is built from the Massachusetts Port Authority ("Massport"). Massport and the Boston Redevelopment Authority must approve any changes to the design of the Park. The Park is required to be open to the public, free of charge, twenty-four hours a day. 

In 1999, Pembroke commissioned Phillips to work on the Park in conjunction with the development of the World Trade Center East office building that forms the Park's western border. Phillips worked closely with Halvorson on the design of the Park. In fact, he had an oral agreement with Halvorson to act as the artist who worked with the landscape specialists. As part of his work with Halvorson, Phillips aided in the design of a series of repeated spirals that run along the axis of the Park from the northeast to the southwest corner. 

To establish the terms of the commission, Phillips and Pembroke executed two contracts in August 1999. Under the "Eastport Park Artwork Agreement", Phillips created approximately twenty-seven sculptures for the Park, comprised of fifteen abstract bronze and granite pieces and twelve realistic bronze sculptures of various aquatic creatures, including frogs, crabs, and shrimp. Under the "Eastport Park Stonework Agreement", Phillips was responsible for the design and installation of stone walls, granite stones inlaid into the Park's walkways, and other landscape design elements. Most of Phillips' work in the Park is organized along the diagonal axis running from the northeast to the southwest corner, at the center of which is his large spherical sculpture entitled "Chords", the centerpiece of the Park, which Phillips personally carved from granite. 

Phillips designed a bronze medallion with Zodiac signs, which crowns an S-shaped circular granite path, also of Phillips' design; outlying sculptures off of the main axis (many bronze crabs, frogs, and shrimp and a large seashell); and the curve motifs. He worked with a stone mason to choose and place the rough lichen-covered, Maine-quarried stone, and he selected the large granite stones that he used as part of his sculptures to mirror the large granite stones along Boston Harbor. Phillips' work in the Park is unified by a theme of spiral and circular forms. 

Pembroke's redesign of the Park and the preliminary injunction 

In 2001, Pembroke decided to alter the Park. It retained Elizabeth Banks, a British landscape artist, to conduct the redesign. Konstantine Krekis, a member of the original design team, also contributed to the redesign. Believing that the Park's original design had conceptual problems, Pembroke wanted to simplify walkways and include more plants for better shade. Pembroke also wanted to remove much of the original stone, which had caused maintenance problems. 

Banks' redesign plan called for the removal and relocation of Phillips' sculptures. Phillips protested. In January 2003, Pembroke agreed to retain Phillips' rough stone walls and all but one of his sculptures. The new redesign plan would also relocate some of the granite paving and change several walkways and finished granite objects. Objecting to this revised plan, Phillips filed suit in federal district court, seeking injunctive relief under VARA and MAPA. 

On August 21, 2003, following a nonevidentiary hearing, the district court issued a temporary restraining order enjoining Pembroke from altering the Park. Subsequently, Pembroke declared its return to the original redesign plan, which would remove nearly all of Phillips' work from the Park. After a two-day evidentiary hearing, the district court issued a memorandum and order in which it found that Phillips had established the likelihood of showing: (1) that most, but not all, of his work in the Park constituted "one 'integrated work of visual art,'" see Phillips v. Pembroke Real Estate, Inc., 288 F.Supp.2d 89, 98 (D.Mass. 2003) (hereinafter "Phillips I"); (2) "an artist has no right to the placement or public presentation of his sculpture under the exception in § 106A(c)(2)," VARA's public presentation exception (a finding that applied to Phillips' work as both integrated art and site-specific art), id. at 100; and (3) that because "the environment of Phillips' integrated sculpture along the axis of the Park is a critical element of those works, [] changing the location of the sculpture constitutes an [impermissible] alteration under" MAPA, id. at 102. Therefore, according to the district court, Pembroke could move Phillips' work from the Park consistent with VARA, so long as Pembroke did not "alter, modify or destroy the 'works of visual art' as [the court] [had] defined them." Id. at 100. In other words, consistent with VARA, Phillips' free-standing works could be moved; and the multi-element, integrated work of art along the northeast-southwest axis could be disassembled and moved piecemeal, so long as individual pieces comprising this integrated work of art were not altered, modified, or destroyed. However, under the broader protections of MAPA for site-specific art, the court granted a preliminary injunction preventing Pembroke from altering the Park. 

Both parties filed interlocutory appeals to this court pursuant to 28 U.S.C. § 1292(a)(1). In the interim, the district court certified the question of whether MAPA protected Phillips' work in the Park to the Massachusetts Supreme Judicial Court ("SJC"), and the federal appeals were stayed pending the SJC's resolution of this state law question. See Phillips v. Pembroke Real Estate, Inc., 443 Mass. 110, 819 N.E.2d 579 (2004) (hereinafter "Phillips II"). The specific question certified to the SJC was: "to what extent does the Massachusetts Art Preservation Act, Mass. Gen. Laws ch. 231, § 85S (1984), protect the placement of `site specific' art?" Id. at 580. 

The SJC concluded that MAPA did not protect site-specific art. See id. at 585-86. In particular, the SJC highlighted the following: (1) "Phillips's contention that the site can be the 'medium' of such art [wa]s not consistent with [] dictionary definitions [of the statutory term 'medium']," id. at 584; (2) "the Legislature was concerned not only with creating new rights for artists, but also with protecting the rights of property owners who commission artworks that become attached to real property," id.; and (3) "[i]f the Legislature intended to include the type of site-specific art at issue here within MAPA's protections, it would entail a radical consequence for owners of land," id. 

In light of the SJC's ruling and its own prior conclusion that it was possible for Phillips' sculptures to be removed from the Park consistent with VARA because of VARA's public presentation exception, the district court vacated the preliminary injunction it had granted and entered judgment on all counts. On appeal, neither party disputes the district court's finding that Phillips' work in the Park along the northeast-southwest axis is both integrated and site-specific art. Additionally, neither party contests the fact that moving any or all of this integrated work from the Park would constitute a physical alteration of the work. 

Phillips, for his part, does not claim on appeal that VARA prohibits the removal of integrated art that is not site-specific. Instead, he claims that VARA prohibits the removal of site-specific art. Therefore, he challenges only the district court's conclusion that the public presentation exception of VARA permits Pembroke to remove from the Park his large, multi-element work of art, which the district court found was both integrated and site-specific. 

VARA states in relevant part that the "author of a work of visual art": 

(3) subject to the limitations set forth in section 113(d), shall have 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. 

17 U.S.C. § 106(A)(a)(3)(A) and (B). As an exception, § 106A(c)(2) states that: 

The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence. 

This is the public presentation exception. A "work of visual art" is defined as including "a painting, drawing, print or sculpture, existing in a single copy" or in a limited edition. 17 U.S.C. § 101. 

In Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir.1995), the Second Circuit, citing VARA's legislative history, explained that VARA: 

protects both the reputations of certain visual artists and the works of art they create. It provides these artists with the rights of "attribution" and "integrity". . . . These rights are analogous to those protected by Article 6 bis of the Berne Convention, which are commonly known as "moral rights." The theory of moral rights is that they result in a climate of artistic worth and honor that encourages the author in the arduous act of creation. 

Id. at 83 (citing H.R.Rep. No. 101-514, at 5, reprinted in 1990 U.S.C.C.A.N. 6915, 6917). "VARA grants three rights: the right of attribution, the right of integrity and, in the case of works of visual art of `recognized stature,' the right to prevent destruction." Id. 

The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author's work from being attributed to someone else, and to prevent the use of the author's name on works created by others, including distorted editions of the author's original work. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title in the work has been transferred. 

Id. at 81 (internal citations omitted). In other words, these moral rights protect what an artist retains after relinquishing ownership (and/or copyright) of the tangible object that the artist has created. 

Rep. Robert W. Kastenmeier, Chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Administration of Justice, summarized VARA's purpose this way: 

[VARA] is . . . a pragmatic response to a real problem. It is directed towards development of Federal rights that would enable visual artists to protect the integrity of their works and the fact of their authorship . . . . We should always remember that the visual arts covered by this bill meet a special societal need, and their protection and preservation serve an important public interest. 

H.R.Rep. No. 101-514, at 5. 

During the preliminary injunction hearing, one of Phillips' experts, Daniel Ranalli, a professor of art history at Boston University, stated: 

Beginning at least with the last third of the 20th century, and continuing through the present, the notion of sculpture has undergone a radical redefinition. In essence, sculpture has come off [of] its pedestal, functioning in the space in and around its site, and playing an integral role in defining that space. 

Phillips I, 288 F.Supp.2d at 95. According to the district court's summary, another of Phillips' experts, Richard Barreto, Executive Director of the Urban Arts Institute of the Massachusetts College of Art, who is involved in the selection of artists to create art in public spaces, testified that: 

[T]oday the concept of "site specificity" is the "rallying cry" of public artists who seek to create a piece that derives enhanced meaning from its environment. Much of modern sculpture does not exist separate from its context, but rather integrates its context with the work to form, ideally, a seamless whole. 

Id. Essentially, for site-specific art, the location of the work is an integral element of the work. Because the location of the work contributes to its meaning, site-specific art is destroyed if it is moved from its original site. See Francesca Garson, Note, Before That Artist Came Along, It Was Just a Bridge: The Visual Artists Rights Act and the Removal of Site-Specific Artwork, 11 Cornell J.L. & Pub. Pol'y 203, 211 (2001) ("It is clear that the community of respected American artists and art authorities regard the crafted work and the site of site-specific artworks as an indivisible whole. The artists who create these works explain that the meaning and purpose behind the art lie squarely within its physical location.") 

As Halvorson stated in an affidavit, "[t]his view contrasts with so-called 'plop-art' where a separately conceived art object is simply placed in a space." Phillips I, 288 F.Supp.2d at 95. A piece of plop-art does not incorporate its surroundings. Site-specific art is the opposite of plop-art. In summary, as the district court found below, "[t]he undisputed expert testimony is that in site-specific sculpture, the artist incorporates the environment as one of the media with which he works." Id. 

We must examine closely the arguments that Phillips presented to the district court, and the district court's responses to those arguments, for two reasons. First, both the statute and the underlying concepts (integrated art and site-specific art) are somewhat complex. Second, the parties could not even agree about the issue on appeal. We must get these basics sorted out before we can analyze the competing arguments. 

1. Phillips' arguments to the district court 

Before the district court, Phillips sought to prevent Pembroke from altering, moving, or modifying any of his work in the Park in any way. At this time in the chronology of the case, the district court had not yet made its factual finding that Phillips' sculpture and stonework along the northeast-southwest axis comprised a single work of integrated art. Therefore, Phillips first argued that "his sculptures and the related stonework are works of visual art designed specifically for Eastport Park and they reflect and enhance the Park's location adjacent to Boston Harbor and are inseparable from it." In other words, each of his works was site-specific, i.e., each individual piece was integrated with its location in the Park. Phillips also argued that VARA protected each of these works from any change in location because such a change would impermissibly alter them. Under this argument, all of his pieces be it any one of his sculptures, or one of the Stone Elements "are meaningful only if they remain in Eastport Park, the location for which they were created." As Phillips elaborated: 

if any sculptures are moved or removed, the spirit, integrity and character of [the] installations will be destroyed . . . . [because] the meaning and purpose of the art derives in large part from its physical locations. . . . [E]ven if the sculptures and stonework are rebuilt elsewhere someday, the artwork will never be the same as [I] intended it to be, and as it currently exists. 

As a corollary to this "site-specific, individual work" argument, Phillips also argued that "[r]emoval of [his] site-specific work would not be a permitted 'presentation' or 'placement of the work under the section 106A(c)(2) exception,'" i.e., that Pembroke's proposed removal of some or all of his work from the Park did not fall within VARA's public presentation exception, which permits certain categories of alterations to works of art.4 

As alternatives, Phillips asserted two integrated work of art arguments in addition to his site-specific, individual work of art argument. First, he contended that the "Park contains a sufficient number of interrelated works of visual art created by Phillips, so that any modification of any of the interrelated Parts of the Park will have an impact on the other related works, and therefore will be a violation of VARA." In other words, apart from any claim that each of the individual sculptures was site-specific, Phillips claimed that each of his individual pieces in the Park was an element of a single, larger, multi-element work of integrated art such that the removal or modification of any one of these elements in the Park would harm the larger, integrated work and violate VARA. 

As a second integrated work of art argument, Phillips argued that while "this court may not have to determine that the Park as a whole is a work of visual art protected by VARA," "[i]f [keeping all of my work in the Park] means that Eastport Park must be declared to be an inviolate work of art [as a whole], then so be it." In other words, Phillips argued that, if necessary, he would assert that the Park as a whole, including the work of the other artists, was a single work of integrated art. 

The district court addressed the integrated art question first: 

The first question is whether Phillips' twenty-seven (27) sculptures constitute a single work of visual art or instead are discrete works of art that must be treated separately under VARA. A related issue is whether the Park as a whole should be treated as a work of visual art. 

. . . 

Phillips takes the position that his artwork extends beyond the[] individual sculptures and includes the finished and rough-hewn granite and stone pavings and the stone walls that he designed and placed, including the "Chords" path and the medallion path (the "Stone Elements"). He also contends that all of his sculptures form one integrated, interrelated work of visual art. To place the sculptural elements in different alignments relative to one another . . . would destroy sight lines and alter the deliberately-crafted spatial relationships among the paths, granite walls, and individual pieces of sculpture. 

Phillips I, 288 F.Supp.2d at 97-98. 

The district court had to decide whether the phrase "work of visual art", as used in VARA, encompassed the concept of integrated art. The district court first looked to the few existing cases addressing VARA. The court found that "courts have held that works composed of a variety of pieces and in a variety of media may still constitute one work of 'visual art' under VARA." Id. at 98 (citing Carter, 71 F.3d at 83-84; English v. BFC & R E. 11th St. LLC, No. 97-7446, 1997 WL 746444, at *3 (S.D.N.Y.1997); and Pavia v. 1120 Ave. of the Americas Assoc., 901 F.Supp. 620, 627-28 (S.D.N.Y.1995)). The district court next looked to legislative history, particularly a statement instructing courts to: 

use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of the definition [of "work of visual art"]. Artists may work in a variety of media, and use any number of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used. 

Id. at 98-99 (quoting H.R.Rep. No. 101-514, at 6). Based on the case law and legislative history, the district court found that VARA embraced the concept of integrated art: "Despite [Congress'] narrow definition, courts have held that works composed of a variety of pieces and in a variety of media may still constitute one work of `visual art' under VARA." Id. at 98. 

What remained was a question of fact: whether all of Phillips' work in the Park constituted a single work of visual art? The district court found that: 

the sculptures along the northwest to southeast axis of the Park, including "Chords" and the medallion sculpture, as well as the Stone Elements, are one integrated "work of visual art." It begins with a spiral in the northwest corner along Seaport Boulevard, includes Plaintiff's "Chords" sculpture, and continues along a spiral path of mosaic paving stone, culminating in the bronze medallion. In determining that the sculptures along this axis, as well as the related Stone Elements, are one work of visual art, the Court relies on the integrated marine theme and recurring spirals, as well as the use of marine granite boulders and pavers. However, the remainder of the sculptures . . . that do not lie along the axis are not part of the same work of visual art. While these sculptures share the marine theme, the Court finds these pieces are individual free-standing pieces of sculpture, which are not integrated into the other pieces by spirals or granite. 

Id. at 98. In other words, the district court concluded that most of Phillips' pieces in the Park constituted a single work of integrated art, but it rejected his position that all of his pieces comprised a single work of art. 

The district court then addressed Phillips' argument that the Park itself is an integrated work of art: 

[o]ne novel issue is whether a park can be a "work of visual art" under VARA. Phillips contends that the Eastport Park as a whole is one large integrated piece of "sculpture." 

The Court rejects Plaintiff's argument that the Park as a whole is a work of visual art. As [] Barreto conceded, a park does not fit within the traditional definition of sculpture . . . . Conceivably, a sculptor could design a sculpture garden that includes multiple inter-related sculptural elements that form an integrated work of visual art . . . . However, here, many elements in the Park were not created by Phillips . . . . Substantial areas of the Park are unrelated to Phillips' sculpture and not integrated with it . . . . While Phillips certainly assisted in designing the stone elements in the paths and walls and in placing his own sculptures, the Park as a whole is not an integrated work of art. 

Id. at 98-99 (internal citation omitted). In deciding whether the Park was an integrated work of art, the district court left open the legal question of whether a park could ever be a "work of visual art" as defined by VARA. Instead, it held that, assuming a park could be a work of integrated art recognized by VARA, the Park was not such a work.
63Finally, the district court's conclusion that VARA applied to integrated art, and its related conclusion that Phillips had created a work of integrated art in the Park, did not prevent the removal of Phillips' works from the Park. That was so because the district court also concluded that integrated art was subject to the public presentation exception of VARA, § 106A(c)(2). Phillips' integrated work of art could still be disassembled and moved so long as the "works of visual art" are not "alter[ed], modif[ied], or destroy[ed]." Id. at 100. 

There remained Phillips' site-specificity argument. If Phillips could show that: (1) his work in the Park was site-specific art; (2) VARA protected site-specific art; and (3) that the public presentation exception did not apply to site-specific art, none of his work could be moved, even on a piecemeal basis. 

Phillips convinced the district court that most of his work in the Park was site-specific as well as integrated. In discussing the issue of site-specificity as part of its discussion of MAPA, the district court made the following factual finding: 

I find that Phillips' sculpture has a marine theme that integrates the large granite stones of the park with his sculpture and the granite sea walls of Boston Harbor into one interrelated visual work of art. Therefore, Phillips used the harborside location at Eastport Park as one medium of his art. To move Phillips' integrated work of visual art (i.e., the sculptures, boulders, and granite paths along the axis, which I described in the VARA discussion) to another location (particularly a non-marine one) would be to alter it physically. 

Phillips I, 288 F.Supp.2d at 102. 

Having made this finding on the site-specific nature of Phillips' work, the district court explained the positions of Phillips and Pembroke on site-specificity: 

[Phillips] [] argues that his work is so site-specific that moving it would be an intentional destruction or modification under VARA. Taking the sculpture from its current location and locating it on a private campus in Rhode Island not near the ocean . . . would be like painting over the background landscape in the Mona Lisa. 

[Pembroke] contends that the "public presentation" exclusion in § 106A(c)(2) permits it to move plaintiff's sculptures from their current placement to another, just as the statute would not prevent a curator from moving the Mona Lisa from one wall in the Louvre to another. 

Section 106A(c)(2) has been interpreted to exclude from VARA's protection "site-specific" works, works that would be modified if they were moved. 

Id. at 99 (citation omitted). The district court then referenced one of the few relevant cases, see Bd. of Managers of Soho Int'l Arts Condo. v. City of New York, No. 01-1226, 2003 WL 21403333, at *10 (S.D.N.Y.2003) (stating that VARA's objective "is not . . . to preserve a work of visual art where it is, but rather to preserve the work as it is") (hereinafter "Soho I"); Bd. of Managers of Soho Int'l Arts Condo. v. City of New York, No. 01-1226, 2003 WL 21767653, at *3 (S.D.N.Y.2003) (hereinafter "Soho II"). It then found Pembroke's legal argument "more persuasive because it is rooted in the plain language of the exclusion in § 106A(c)(2) as well as the statute's legislative history." Phillips I, 288 F.Supp.2d at 100; see also id. ("'Generally, the removal of a work from a specific location comes within the [presentation] exclusion because the location is a matter of presentation.'") (quoting H.R.Rep. No. 101-514, at 12). 

Finally, the district court highlighted the fact that the public presentation exception "was crafted after the widely-publicized dispute between the General Services Administration and the artist Richard Serra over the removal of Serra's 'site-specific' piece 'Tilted Arc.'" Id.; see also Serra v. United States Gen. Serv. Admin., 847 F.2d 1045 (2d Cir.1988). In Serra, the Second Circuit rejected the plaintiff's argument that the removal of an integrated, site-specific, government-owned work of art from federal property violated the free expression and due process rights of the artist. See Serra, 847 F.2d at 1045. The district court inferred that because VARA and the public presentation exception were adopted after Serra, Congress must have been aware of site-specific art. Yet VARA says nothing that suggests special protection for site-specific art. Therefore, the district court concluded that: 

an artist has no right to the placement or public presentation of his sculpture under the exception in § 106A(c)(2). [Pembroke] is not obligated to display the works in the Park, as VARA provides no protection for a change in placement or presentation. However, under VARA, [Pembroke] is under an obligation not to alter, modify or destroy the "works of visual art" as I have defined them. 

Id. at 100. 

This is the conclusion that Phillips challenges on appeal. As he puts it: "the District Court misinterpreted the language and Legislative history of the [public presentation exception], and [] VARA protects Phillips' artwork from the removal planned by Pembroke." Pembroke asserts, inter alia, that the district court ruled correctly that the public presentation exception negates any protection VARA extends to site-specific art. More fundamentally, it argues that VARA does not apply to site-specific art at all. 

Our review of the district court's decision is de novo. See Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1007 (1st Cir.1995) ("A district court's resolution of a question of statutory interpretation engenders de novo review in the court of appeals."). "We are not wedded to the lower court's rationale, but, rather, may affirm its order on any independent ground made manifest by the record," InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.2003). "As in all statutory construction cases, we begin with the language of the statute." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Furthermore, "[w]e have consistently held that when the plain meaning of a statute is clear, we are not to look beyond that text to discern legislative intent." Palmieri v. Nynex Long Distance Co., 437 F.3d 111, 115 (1st Cir.2006); see also Bonilla v. Muebles J.J. Álvarez, Inc., 194 F.3d 275, 277 n. 2 (1st Cir.1999) (When "the plain meaning of the statute resolves the issue sub judice, we need not rummage through the legislative history or search for other interpretive aids."). 

A. The district court's understanding of site-specific art and VARA 

To help explain our holding that VARA does not apply to site-specific art, we must begin with a restatement of the district court's view of the interaction between VARA and site-specific art. On the one hand, the district court accepted the concept of site-specific art. It credited the unopposed testimony of Ranalli, Phillips' expert, "that for site specific art, the location of the work is a constituent element of the work." Phillips I, 288 F.Supp.2d at 95. The district court understood that "[u]nder this approach, because the location defines the art, site-specific sculpture is destroyed if it is moved from the site." Id. The district court also found that "[t]o move Phillips' integrated work of visual art (i.e., the sculptures, boulders, and granite paths along the axis . . . described in the VARA discussion) to another location . . . would be to alter it physically," id. at 102. 

On the other hand, in the section of its opinion addressing Phillips' site-specificity argument - entitled "'Public-Presentation' Exclusion" - the district court noted that "Section 106A(c)(2) has been interpreted to exclude from VARA's protection 'site-specific' works, works that would be modified if they were moved." Phillips I, 288 F.Supp.2d at 99. It then referenced Soho I ("[T]he point of VARA 'is not . . . to preserve a work of visual art where it is, but rather to preserve as work as it is,'" 2003 WL 21403333, *10) and Soho II ("'[N]owhere in VARA does the statute make any legal distinction between site-specific or free-standing works,'" 2003 WL 21767653, at *3). The district court concluded "that an artist has no right to the placement or public presentation of his sculpture under the exception in § 106A(c)(2)." Phillips I, 288 F.Supp.2d at 100. In short, the district court found that while VARA applies to site-specific art, the public presentation exception permits the removal of site-specific art, e.g., Phillips' work in the Park. 

Without in any way diminishing our respect for the district court's careful handling of this difficult case, we find its analysis of VARA's relationship to site-specific art unpersuasive. By definition, site-specific art integrates its location as one of its elements. Therefore, the removal of a site-specific work from its location necessarily destroys that work of art. Here, the district court concluded that VARA recognized site-specific art as a type of integrated art, and then concluded that VARA treats site-specific art the same way that it treats other integrated art. However, a work of integrated art, unless it is a site-specific work, is not destroyed by removal from its location. 

By concluding that VARA applies to site-specific art, and then allowing the removal of site-specific art pursuant to the public presentation exception, the district court purports to protect site-specific art under VARA's general provisions, and then permit its destruction by the application of one of VARA's exceptions. To us, this is not a sensible reading of VARA's plain meaning. Either VARA recognizes site-specific art and protects it, or it does not recognize site-specific art at all. 

Phillips recognizes the same tension in the district court's holding that we have identified, but he resolves it differently. He agrees with the district court's position that VARA applies to site-specific art (as well as integrated art), but disagrees with the district court's view that the public presentation exception permits the removal of site-specific art. 

To circumvent the district court's view of the public presentation exception, Phillips argues that VARA prevents the removal of site-specific art because the public presentation exception does not apply to site-specific art. His argument begins with a claim that the words "presentation" and "placement" in the public presentation exception are ambiguous on the issue of location. We find nothing remotely ambiguous about the word "presentation", which is modified by the word "placement". The word "placement" inescapably means location. Noting this fact, Phillips claims that "the word placement could suggest something that is temporary, as in the placement of furniture, or it could refer to something more permanent, as in the placement of a massive piece of sculpture." Phillips then asks the question that he describes as pivotal: "does the word placement include something that is securely fixed in a particular position as in the case of. . . [his] integrated work of visual art that spans the northeast-southwest axis of the Park?" 

To answer this question, Phillips invokes the doctrine of noscitur a sociis, which counsels that words in a statute should be understood in the context of the terms around it. See Microsoft Corp. v. Comm'r, 311 F.3d 1178, 1184 (9th Cir.2002). Relying on this doctrine, Phillips asserts that "lighting and placement must be read to be related to each other and be words of equal significance. If lighting refers to non-permanent changes in public presentation, then placement must also refer to non-permanent changes in public presentation." Phillips continues: "[b]uried within the "placement" term is the assumption that the object is moveable, and can be placed in various locations. This assumption must be examined. Site-specific artwork is a well-recognized form of art, but it is not always moveable." 

We agree with Phillips that the premise of the public presentation exception is artwork that can be moved in some fashion, such as paintings or sculptures - that is, art that is not permanently affixed or "integrated" in such a way that the mere act of moving it would destroy it. The possibility of change without destruction is implicit in the public presentation exception. The public presentation exception defines the types of changes, such as those in lighting and placement, that do not constitute "destruction, distortion, or mutilation". But Phillips draws a startling conclusion from the public presentation exception's focus on permissible change in the presentation of a work of visual art: because the public presentation exception addresses itself only to "plop-art", that is, those works of art subject to temporary changes in such matters as lighting and placement, and declares further that such modifications of a work of visual art are not "destroying, distorting, or mutilating" them, the public presentation exception does not apply to site-specific art, which, as everyone acknowledges, cannot be removed from its location without destroying it. This approach leaves Phillips with the district court's holding that VARA applies to site-specific art, minus the court's related holding that the public presentation exception permits the removal of such art. In this way, the tension that we identified in the district court's decision disappears. 

With his position on VARA and the public presentation exception, Phillips argues that VARA essentially creates a dual regime - words that mean one thing as applied to non-site-specific art have a different meaning when applied to site-specific art. Beyond his reading of the public presentation exception itself, Phillips cites only one other provision of VARA in support of his dual regime argument - § 113(d)(1)(A) of VARA, the so-called "building exception", which excludes from VARA's protection "a work of visual art [that] has been incorporated or made a part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3)." Phillips asserts that because VARA provides an exception to VARA for artwork attached to buildings, but does not contain a similar provision for site-specific art (understood as art attached to real property), VARA must protect site-specific art. 

With both the public presentation and building exceptions, Phillips is arguing that VARA's silence on a subject is actually evidence that the statute addresses that subject. To say the least, this is an odd way to read a statute. If VARA actually established such a complicated, dual regime, we would expect that the phrase "site-specific", or some equivalent, would appear in the language of the statute. There is no such phrase anywhere. Indeed, we would expect much more than just a reference to site-specific art. We would expect an elaboration of how to differentiate between site-specific and non-site-specific art (plop-art). That elaboration is nowhere to be found. 

Moreover, the creation of a dual regime — which would require us, essentially, to rewrite VARA - has potentially far-reaching effects beyond the protection of Phillips' work in the Park. Once a piece of art is considered site-specific, and protected by VARA, such objects could not be altered by the property owner absent consent of the artist. Such a conclusion could dramatically affect real property interests and laws. 

For example, as Pembroke argues in its brief, Phillips' work in the Park "lies within a rapidly changing urban area and extends beyond Eastport Park to Boston Harbor." If a dual regime were created, there is the potential that: 

not only would Pembroke's ability to move [Phillips'] work or alter Eastport Park be subject to Phillips' approval, but also the owners of nearby property who had nothing to do with the purchase or installation of Phillips' works would be subject to claims that what they do with their property has somehow affected the site and has, as a result, altered or destroyed Phillips' works. 

In discussing the possibility of MAPA protecting site-specific art, the SJC echoed this concern, observing that the creation of a dual regime under MAPA "would entail a radical consequence for owners of land, that the Legislature directly averted for owners of buildings. Specifically, rights afforded artists would encumber private and public land with restrictions lasting for the life of the artist plus fifty years, without the need for such restrictions to be recorded in a registry of deeds." Phillips II, 819 N.E.2d at 584-85. The SJC ultimately refused to: 

read such an intent into a legislative act given the recognized legislative policy of disparaging land restrictions (especially unrecorded ones), the common-law doctrine disapproving the long-term burdening of property, and the corollary judicial practice of construing statutory provisions regarding land restrictions in favor of freedom of alienation. 

Id. at 585 (internal quotation marks omitted). 

The Supreme Court has also emphasized the principle that "statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (internal citations and quotation marks omitted); see also Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). "In such cases, Congress does not write upon a clean slate. In order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law." Texas, 507 U.S. at 534, 113 S.Ct. 1631 (internal citations and quotation marks omitted). Phillips' argument that VARA's silence on the subject of site-specific art affords special protection to site-specific art hardly meets this requirement of direct address. 

Ultimately, we agree with Pembroke's position that "[t]here is no basis for Phillips' claim that VARA establishes two different regulatory regimes: one for free-standing works of art ... and one for site-specific art that can never be moved and must always be displayed." VARA's plain language also requires us to reject the district court's approach to site-specific art. VARA does not protect site-specific art and then permit its destruction by removal from its site pursuant to the statute's public presentation exception. VARA does not apply to site-specific art at all. 

We do not denigrate the value or importance of site-specific art, which unmistakably enriches our culture and the beauty of our public spaces. We have simply concluded, for all of the reasons stated, that the plain language of VARA does not protect site-specific art. If such protection is necessary, Congress should do the job. We cannot do it by rewriting the statute in the guise of statutory interpretation. 

Affirmed.

 David Phillips sculptures in Eastport Park

Questions:

1. Do you agree with the court's conclusion that VARA does not apply to site-specific work?
2. Chapman Kelley is an artist, known primarily for his paintings of landscapes and flowers. In 1984, the City of Chicago allowed Kelley to create the installation "Wildflower Works" in Grant Park, in downtown Chicago. Wildflower Works consisted of two elliptical beds of specially-selected wildflowers, each about the size of a football field. In 2004, the City changed the installation, making the beds smaller and rectangular, and planting some different flowers. Kelley filed an action against the city under VARA. In Chapman Kelley v. Chicago Park District, the 7th Circuit rejected Kelley's VARA claim, holding that Wildflower Works was not protected by copyright because it was not fixed in a tangible medium. Do you agree?

Chapman Kelley, Wildflower Works (1984)