Expert Plays Key Role in VARA Action Involving Public Art

Intellectual Property Expert WitnessThe plaintiffs in this case filed an action pursuant to the Visual Artists Rights Act of 1990 (VARA) (17 U.S.C.S. § 106A) to prevent the alteration or destruction of certain art work (“the Work”) installed by them in the lobby of a commercial building they were formerly tenants of, and to recover money damages, costs, and attorney’s fees.

The Defendants were the owners and managing agents of the commercial building. They sought to terminate the installation of artwork commissioned by these prior tenants and remove artwork already in place. Plaintiffs, the artists, filed an action pursuant to VARA, to prevent the alteration or destruction of the Work. The trial court determined that under VARA the artwork was a single work and not excluded as “applied art”, nor “work made for hire” according to the Reid factors. The court concluded that the work was of recognized stature and was entitled to protection under VARA, and granted injunctive relief to the artists. The court did not grant damages or attorney’s fees for copyright infringement however, holding that such awards were unavailable for unpublished work commenced before the date of copyright registration.

Amongst other areas of law, this case addressed issues related to ownership of property, copyright infringement, and landlord-tenant law in a commercial real estate context.

Expert Witnesses

Witnesses were called by both sides, including expert witnesses. In an action pursuant to VARA, it is commonplace, although not uniformly so, for plaintiffs to call upon expert witnesses in order to further the merits of their case. Plaintiffs called Professor Aedwyn Darroll to testify as an expert in sculpture and other visual art. Professor Darroll had taught two and three dimensional design (including sculpture), for more than twenty years and at the time taught at the Parson School of Design and at the Fashion Institute of Technology in New York City.

The Plaintiffs sought to elicit expert testimony that raised serious questions concerning whether the work was a “work of recognized stature” as defined by VARA. Additionally, plaintiffs showed the existence of such stature by showing the impact that destruction of the work would have on their honor and reputation. Kent Barwick, president of the Municipal Art Society of New York, and a former chairman of the New York City Landmarks Preservation Commission, was called by plaintiffs to testify as an expert witness. Mr. Barwick testified that the Society sponsors tours of “noteworthy works of fine art or architecture in the City of New York”. Mr. Barwick testified that, to this end, the Society organized a tour of the Work in February 1994. Mr. Barwick stated that those who had gone on the February tour were “very, very excited” about the Work, and that they were anxious to have the tour of the Work made a permanent part of the Society’s tour schedule.

Outcome and Commentary

Injunctive relief was granted to the plaintiff artists because the artwork was determined to be a work of recognized stature and not a work for hire and, therefore, was entitled to copyright protection.

Plaintiffs successfully showed that they would suffer irreparable harm if defendants were permitted to alter, deface, modify, or mutilate the Work. Plaintiffs also successfully showed that they would suffer irreparable injury if they or their invitees were barred from the Lobby of the building during the pendency of this action.