Artists Need to Read the Agreements They Sign

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There is much to be learned from instances in which an artist wins a moral rights lawsuit involving the Visual Artists Rights Act. That piece of federal law, enacted in 1990 as an amendment to the U.S. Copyright Act, permits the author of a “work of visual art” the right

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Some artists have prevailed when they brought action against a perceived wrong. For instance, in 1997, Jan Martin won the first lawsuit filed under the law, after his sculpture “Symphony #1” was demolished by the City of Indianapolis, Indiana, which sought to make changes in a downtown neighborhood under an urban renewal plan and did not think to inform the artist of its intentions or allow him to retrieve his work. Four years later, sculptor Audrey Flack sued when a nonprofit group that had commissioned her to erect a monument in the Borough of Queens, for which she created the bronze casting molds and a 35-foot tall clay head, allowed the molds to become damaged and then unbeknownst to her hired one of Flack’s assistants to resculpt the face rather than Flack herself. In 2008, artist Kent Twitchell prevailed when he brought a VARA lawsuit against 13 defendants, including the U.S. government, for destroying his moral “Ed Ruscha Monument” in 2006 by whitewashing the side of the building in Los Angeles where it had been painted back in 1987. (In each instance, the artist won.)

There also is something to be learned when artists lose moral rights lawsuits, because artists must never forget that they must know what the law is and not just make assumptions. There have been more losses in artist-filed VARA lawsuits than wins, and the most recent defeat for an artist was handed down on November 14th by a district court in New York when it ruled that Steven Tobin’s “Trinity Root” sculpture, which had been installed outside downtown New York City’s venerable Trinity Church in 2005, as a memorial to the terrorist attacks of September 11th, 2001, was removed in 2015 and transported to a church-owned site in Connecticut. A certain amount of damage took place as a result of the move.

The sculpture was inspired by the sycamore tree in front of the 320 year-old church, which bore the brunt of the falling debris on September 11th, preserving the church from more extensive damage. Tobin, a sculptor who lives in Coopersburg, Pennsylvania, convinced the then-rector of the Episcopal church, Rev. James H. Cooper, to permit him to excavate the stump and roots of the tree so that he could create a bronze memorial, which would be sited at the site of the church. Tobin was not paid by the church, but he agreed to pay the entire cost – estimated in the lawsuit as over $1 million and requiring the artist to take out a second mortgage on his home – of creating “The Trinity Root,” which is 15 feet wide and 13 feet tall, weighing three tons. Tobin was assured by Rev. Cooper that the artwork would remain in the courtyard permanently.

There was a formal agreement between the artist and the church in 2004, stating that “Tobin hereby transfers and assigns to Trinity by charitable donation all right, title, and interest to the Sculpture.” In addition,

In the event of any termination of this Agreement, Trinity will own the Sculpture…and will have the right to complete, exhibit and sell the Sculpture if it so chooses…. Tobin understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.

That promise to keep the sculpture in the courtyard permanently was not in writing, however, negating any claims of breach of contract. Tobin was notified in advance of the decision by the church, now under the leadership of a different rector, to move “Trinity Root” out of state, and he objected, claiming that the artwork was “site-specific” and that moving it to a location unrelated to the events of 9/11 diminishes the sculpture and thereby the sculptor himself. However, the district court judge pointed to the contract signed by the artist in which “the Agreement provides that it ‘constitutes the entire agreement between the parties…and may only be amended or modified by a written instrument executed by the duly authorized representatives of the parties.’”

On Tobin’s VARA claim that moving the artwork represented a distortion of it, Judge Lorna G. Schofield ruled that “Trinity Root” was not treated with any degree of “gross negligence” and affirmed what other courts around the country have held that the federal law “does not apply to site-specific art at all.”

The lesson for artists from all this is to read and abide by the terms of the contracts they sign, as well as not to assume that they are somehow above the law.