Site-Specific Art and the Law

In October 2006, David Phillips, a nationally recognized sculptor, brought suit against Pembroke Real Estate, Inc. in federal district court of Massachusetts, asserting that Pembroke would violate his rights under VARA (Visual Artists Rights Acts, 1990), and MAPA (Massachusetts Art Preservation Act, 1984) by removing multiple pieces of his sculpture and stonework from the Eastport Park near Boston Harbor. Pembroke owned the land where the park is and hired the artist in 1999 to create 27 sculptures for placement in the park. Soon after the park was completed in 2001, Pembroke decided to redesign the park and remove and relocate the works by Phillips due to conceptual change of the new design of the park. As a result, the artist objected to the revised plan and filed suit seeking for injunctive relief. This case raised an important question about the protection of VARA on site-specific art.

Site-specific art 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 intends for the work to retain its meaning and integrity. In terms of site-specific art, the location of the work is a constituent element of the work. In this case, the artist argued that these sculptures were made specifically for the park and had a marine theme that corresponded to the harborside location of the park. In other words, the marine environment of the park itself could be interpreted as one medium of the artworks. Therefore, removing the sculptures from its original site would lead to an intentional conceptual destruction on the artworks. Pembroke, on the other hand, contends that public presentation exclusion permits it to relocate Plaintiff’s artworks. So what is public presentation exception? This statute was adopted after the case of the artist Richard Serra and his site-specific piece, “Tilted Arc,” in which the court rejected the artist’s argument that the relocation of his site-specific art from the federal plaza violated his rights under federal copyright and trademark law. Public presentation exception permits certain inevitable modifications of artworks if they were moved because the point of VARA is to preserve a work of visual art as it is rather than preserve it where it is.

Convinced that the works were site-specific and moving any or all of these integrated work would cause a physical alteration of the work, the district court first issued a temporary restraining order preventing Pembroke from altering the park. The injunction was later (2004) vacated because the district court held that although VARA applies to site-specific art, the public presentation exception allows Pembroke to relocate these sculptures. In 2006, the artist challenged the district court’s reasoning about public presentation exception and the case entered the first circuit. The result was that the first circuit not only affirmed the district court’s permission for Pembroke to remove Phillips’ artworks, but also held that VARA does not apply to site-specific art at all since VARA says nothing that suggests special protection for site-specific art.

Trial courts have adopted the same reasoning about the exclusion of site-specific art in similar cases following the final decision of Phillips v. Pembroke case. However, the decision was questioned in 2009 in a case between the wildflower artist Chapman Kelley and Chicago Park District. The artist designed Wildflower Works, which was considered as a site-specific painting/sculpture, in Chicago’s Grand Park and the park officials altered it without the permission of the artist. In this case, the court raised the question about whether the Phillips v Pembroke rule would allow any distortion of a site-specific work. The plaintiff argued that site-specific art is not necessarily destroyed if moved; modified, probably, but not utterly destroyed. And the public presentation exception does not eliminate every type of protection VARA grants to artists of site-specific art. For instance, it does nothing to limit the artist’s right of attribution, which prevents the artist’s name from being misappropriated. Also, site-specific art could be defaced or damaged in ways that do not relate to its public display.  In short, the court held that the exception only covers a particular kind of site-specific art and site-specific art should not be categorically excluded from VARA.

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