Artist Sues Church For Moving His 9/11 Memorial Sculpture

from the this-again? dept

It's pretty rare for us to bring up the issue of "moral rights" over creative works in the US, and even rarer to directly reference VARA -- the Visual Artists Rights Act of 1990 -- and yet, here we are, twice in one week discussing VARA claims. Even more incredibly, both are about sculptures that were placed for free in parts of lower Manhattan, right off Wall St. The claim that's received lots of attention was the one over the Wall St. Bull and the fact that another statue was placed near the bull, which the artist claims changes his message, and thereby violates VARA. This other claim is from another sculptor, Steve Tobin, who is suing Trinity Church for moving his 9/11 memorial sculpture to Connecticut.

VARA, if you don't remember, was a bill passed in 1990, as a half-assed way to try to pretend that the US is in compliance with the Berne Convention -- the large (and almost entirely awful) international agreement on copyright and copyright related issues. Part of the Berne Convention requires that countries signing on recognize so-called "moral rights." For the most part, copyrights are considered economic, rather than moral rights, which is why they can be bought and sold. Moral rights, on the other hand, are a concept more popular in Europe, which argue beyond the economic rights, the creators of works have certain "moral" rights in what is done with those works. In order to pretend that the US fulfilled the Berne Convention requirements without actually introducing a full moral rights regime, Congress passed VARA in 1990, which gave fairly limited moral rights only to "visual" works like paintings and sculptures. The specific moral rights granted include the right to claim authorship in the work you created, and to prevent the destruction or mutilation of your work -- which is what we discussed in the case of the Wall St. Bull (even though VARA likely doesn't apply to the Bull).

So, now for the details of this case. The Art Newspaper (the link above), which first wrote about this story, did not post a link to the filing (side note: I never understand why journalists don't link to source material if they have access to it). You can read the whole thing here. But the quick summary, as explained in the link above, is this:

The sculpture The Trinity Root recalled a sycamore tree that stood in front of the 320-year-old church and bore the brunt of the debris from the collapse of the Twin Towers on 11 September, preserving the church from more extensive damage. Tobin convinced the rector of the church at the time to allow him to excavate the stump and roots of the tree so that he could create a bronze memorial. The artist was not paid by the church and covered the production costs himself—estimated at more than $1m according to the lawsuit filed in federal district court on Wednesday, 12 April—on the promise that the work would remain in the courtyard permanently.

The sculpture was installed in 2005, but a different rector decided it should be removed in 2015, without informing the artist, and relocated to a church-owned seminary in northwestern Connecticut. “The new rector, Dr William Lupfer, didn’t like it, thought it was ugly and took up too much real estate and wanted it gone,” said Kathleen Rogers, Tobin’s business manager. In the process of moving the three-tonne sculpture, some elements were damaged, the lawsuit says.

You can see a snapshot of the Trinity Root by Tony Fisher here (licensed under a CC-BY 2.0 license):

The Trinity Root - 9/11 Memorial

Large sections of the filing focus on the fact that in multiple press announcements and stories about the Trinity Root, the church mentioned that the sculpture would be a "permanent" installation (and in at least one case, Tobin himself put out a press release with the same claim, and the press release had the church's approval).

The lawsuit goes to great lengths to also note that this is Tobin's most famous work, that it's tied up with his reputation and that lots and lots of people come to visit it. Oh, and also he explains just how much effort was taken in creating, transporting and installing the sculpture (they even had to get the George Washington Bridge to close to allow him to transport the sculpture across it. In other words, this was no small undertaking. There's also a video of the creation, transportation and installation of the Trinity Root:

The complaint also reveals some of the discussions that Tobin had with Trinity Church after finding out that the new Rector didn't like the sculpture (or the crowds that came to see it). Tobin keeps telling the Church that the artwork is "site specific," and the church keeps asking him if he'd help them move it away at the church's expense. Also this: according to the lawsuit, as Tobin kept arguing with the church over moving the sculpture, they apparently went and did it anyway without telling him, and they continue to discuss over the phone with him his objections to moving it, without mentioning that they had already moved it.

One more twist in the contract between Tobin and the church is that Tobin agreed to one of those "you give us everything" clauses reading:

Under the heading "OWNERSHIP; COPYRIGHT" the Agreement further provided that "Tobin hereby transfers and assigns to Trinity by charitable donation all right, title and interest to the Sculpture and all materials related thereto (including but not limited to all sketches, photographs and audio-visual footage), including but not limited to the copyright therein, and any cause of action that Tobin may have with respect thereto, in perpetuity throughout the universe, for use in any manner and in any media now known and hereafter invented."

The question is whether this would count as a waiver of moral rights under VARA. You can't assign your moral rights to another party, but you can waive them. But a waiver, under VARA, has to be written and it has to specify the "uses of that work to which the waiver applies." Tobin's lawyers have a point that the above doesn't seem to be a waiver (and, Trinity Church might want to talk to whatever lawyer drew up that agreement...).

Finally, it's revealed that in moving the sculpture from Manhattan to Connecticut, the statue was damaged in a few places, which gives Tobin more of a claim under VARA for "mutilation" of his work.

So what does this all mean... At a glance, it seems like Tobin has a much more credible claim under VARA than the guy who created the bull, but it still seems... nutty. The idea that the church can never move a statue in its courtyard just seems wrong. And, at the very least, this case is another example of why we should let the Copyright Office know that expanding moral rights is a really bad idea. Remember, the Copyright Office is currently studying the question of expanding moral rights, and the comment reply period is still open (until May 15th).

In the end, while the damaging of the statue perhaps adds at least some greater credibility to the VARA claim -- even though it wasn't designed to be a mutilation, just an accident while moving -- the fact that an artist can claim (even after giving up all rights and title to the piece) that because the piece has some connection to a site, the owners can no longer move it, would be really, really dangerous. Yes, there's a stronger argument here as to why this one location is directly tied to this piece of artwork (and many other artists would have trouble showing the same level of connection), any time you argue that artwork is so connected to its siting that moving it would violate the law... something seems to have gone wrong. I can certainly understand why the artist is upset, but as we noted with the bull, artists give up quite a lot of control when they let art out into the world and, as in this case, hand ownership over to a third party.


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  • identicon
    Anonymous Coward, 20 Apr 2017 @ 11:54am

    Where does these "artists" get 1 and 2.7 million to blow?

    Besides to sue. That's the real story here.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2017 @ 11:57am

    Seems like a contract violation claim would have better standing. If the church actually signed off that the statue would stand in that location permanently then moving it was a violation of the contract. Hopefully there was section detailing what would happen if there was a contract violation such as rights being assigned back to the artist.

    reply to this | link to this | view in chronology ]

    • icon
      MDT (profile), 20 Apr 2017 @ 12:25pm

      Re: Contract Violation

      Yeah, if the idea was this was to be permanent, then the contract should state somewhere in it that the statue cannot be removed or else all rights revert to the artist.

      If it does say that, then the church is on the hook for the damage, and cost of the artist retrieving it from where it currently is.

      If the contract doesn't state that, then the artist shouldn't really have a leg to stand on.

      reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 20 Apr 2017 @ 6:53pm

        Re: Re: Contract Violation

        This is the thing. It seems to work particularly well in a last will and testament. (Because the dead have more legal power or something.) There are sometimes ways around it, given the language, but it already sounds like the artist does not, indeed, have a leg to stand on.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2017 @ 11:58am

    *Intentional* destruction

    From the VARA:
    "...the artist...shall have the right...[(3)(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."

    Seems like the artist would have to show that the destruction was the result of intentional or grossly, not ordinary negligence. That's a higher bar to meet.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 20 Apr 2017 @ 8:04pm

      Re: *Intentional* destruction

      People have been convicted of first degree murder because, when they bought the gun ten years ago, they decided that if they believed their life was in danger they would shoot. And the prosecution argued that that was premeditation.

      Really.

      The bar for proof in a criminal case, especially a murder case, is MUCH higher than any civil case.

      reply to this | link to this | view in chronology ]

  • identicon
    Mason Wheeler, 20 Apr 2017 @ 12:20pm

    The idea that the church can never move a statue in its courtyard just seems wrong. And, at the very least, this case is another example of why we should let the Copyright Office know that expanding moral rights is a really bad idea.

    Does this even need to invoke moral rights? The agreement was that this was supposed to be permanent, and if the new rector doesn't like that agreement, he's free to not like it, but that doesn't give him any right to violate it.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 20 Apr 2017 @ 8:05pm

      Re:

      There's a word for people who only make one argument in a lawsuit: Losers.

      If you want to win a lawsuit, you throw every possible argument at the bench and see what sticks.

      reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 20 Apr 2017 @ 1:30pm

    Exhibit Uh-Oh

    We need to see Exhibit O before passing judgment on the agreement. But even without it, paragraph 42 of the Complaint reads decisively against Tobin:

    The Agreement further provides that "Tobin understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate."

    If the Agreement contains an integration clause (no party relied on promises outside the agreement), he is going to have a hard time making his case.

    As for the "mutilation" claim, it should be dismissed. Tobin doesn't allege any facts plausibly suggesting that the Church intentionally damaged the sculpture, much less did so with an intent to alter its artistic impression. The sculpture broke while being moved, something entirely permissible under the Agreement.

    And not to excuse the Church's alleged duplicitous conduct, but the Complaint reads like sour grapes on Tobin's part: artist loses high-profile display in Lower Manhattan, files lawsuit complaining about the terms of an agreement he freely entered into. Keep us posted.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2017 @ 2:13pm

    i think we are seeing the genesis of a whole new approach towards acceptance of works of art. as in: NOT.

    these artists may be poisoning the well they are trying to dominate.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2017 @ 3:11pm

    So if they had left it there and then covered it up so no one can see it would the artist still have moral rights?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Apr 2017 @ 4:04pm

    There's something fundamentally wrong--unjust, downright EVIL--about giving one profession rights that another doesn't have. Not that all sorts of professional cliques aren't constantly trying to give themselves such special privileges. For instance, according to some professional publishers, "Freedom of the Press" makes a sacred bull out of one particular business model; the reality is, it keeps the government from restricting ANYONE'S access to publish. And this "moral rights" is more of the same--a special privilege available only to certain persons who have the approval of the governing arts critics (who alone can "recognize" the "status" of the artwork.)

    New York should just move both statues to a street corner where untrammeled capitalism is exhibited in sales of imported pharmaceuticals and negotiations for temporary affection.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 20 Apr 2017 @ 8:07pm

    Why no links to sources?

    "(side note: I never understand why journalists don't link to source material if they have access to it)"

    There's two reasons for that as I understand the issue. One makes some sense, the other is really shady.

    The one that makes some sense is that if you never link to sources, then not linking to a confidential source won't stand out.

    The shady one, on the other hand, is that by not linking to sources, the journalist prevents people from reading the facts without any spin -- thereby preserving the spin the journalist used in their article.

    reply to this | link to this | view in chronology ]

  • identicon
    Paul, 21 Apr 2017 @ 3:53am

    Waiver vs Assignment

    He may have waived his moral rights. HOWEVER, even if he neither waived nor assigned his moral rights, he ASSIGNED all of his "causes of action" which would include any right to recover anything. This was extremely clear from the language:

    TRANSFERS and ASSIGNS ..... all right, title and interest to the Sculpture and all materials related thereto ..... including but not limited to the copyright therein, and any CAUSE OF ACTION that Tobin may have with respect thereto.

    One can retain all rights BUT also assign the benefits of a claim based upon those rights.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 21 Apr 2017 @ 1:16pm

    Creepy

    If I were the Rector, I would want that ugly ass thing gone too.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Apr 2017 @ 3:35am

    great. so no one will risk buying or displaying art anymore. nice going.

    reply to this | link to this | view in chronology ]


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