concurring in part and dissenting in part.
Like my colleagues, I am not an art critic. So I begin with the well-worn adage that one man’s junk is another man’s treasure. No doubt Jan Martin treasured what the city’s bulldozers treated as junk. At this point in the litigation this court is not in a position to attach either label (or perhaps one falling somewhere in between) to Symphony # 1. For the Martin sculpture to receive protection under the Visual Arts Rights Act (VARA), it has to rise to the statutory level of “recognized stature.” Because at this summary judgment stage, at least, it has clearly not merited the protection that goes with that description, I respectfully dissent.
Another well-worn adage advises that you should never look a gift horse in the mouth. Of course anyone who has ever accepted a gift horse that turns out to be lame or otherwise infirm quickly understands the error of that advice when the feed and veterinary bills arrive. When the City acquired several tracts of land for urban renewal, Martin’s Symphony # 1 remained in place on one of the tracts. Martin offered to donate the sculpture to the City if it would remove and relocate it to another site. The City examined this “gift” and determined it would have cost it $8,000 to relocate, so it declined the offer. But it did agree to notify Martin in advance of any renewal project so he could remove Symphony # 1 if he so chose. Although it appears that Martin was fully aware that the sculpture’s days were numbered, the City did not send him an official notice before the bulldozer moved in. If this were a simple breach of contract claim (albeit not a federal case), damages could well be in order. Instead, this is a federal claim under VARA, and different standards apply.
Of course, VARA was not designed to regulate urban renewal, but to protect great works of art from destruction and mutilation, among other things. 17 U.S.C. § 106A(a). In order to restrict VARA’s reach, the Act was limited to preventing-destruction of works of art that had attained a “recognized stature.” 17 U.S.C. § 106A(a)(3)(B). The court correctly notes that a natural reading of this term indicates that it has two elements (which *616correspond to its two words): (1) merit or intrinsic worth; and (2) a public acknowledgment of that merit by society or the art community. As the district court in Carter v. Helmsley-Spear, Inc. stated: “the recognized stature requirement is best viewed as a gate-keeping mechanism — protection is afforded only to those works of art that art experts, the art community, or society in general views as possessing stature.” 861 F.Supp. 303, 325 (S.D.N.Y.1994), rev’d in part and aff'd. in part, 71 F.3d 77 (2d Cir.1995). So I concur with the court on this point.
I dissent, however, because summary judgment is not appropriate here. A plaintiff cannot satisfy his burden of demonstrating recognized stature through old newspaper articles and unverified letters, some of which do not even address the artwork in question. Rather, as the district court stated in Carter, in “making this showing [of recognized stature] plaintiffs generally, but not inevitably, will need to call expert witnesses to testify before the trier of fact.” 861 F.Supp. at 325. Instances where expert testimony on this point is not necessary will be rare, and this is not one of those exceptional cases where something of unquestioned recognition and stature was destroyed. Furthermore, where newspaper articles are admitted into evidence only to acknowledge recognition but not for the truth of the matter asserted (that the art in question was good or bad), a plaintiff needs more to overcome a defendant’s motion for summary judgment on a VARA claim, much less prevail on his own summary judgment motion. While the very publication of newspaper articles on a work of art may have bearing on the “recognized” element, there has to be some evidence that the art had stature (i.e., that it met a certain high level of quality). The newspaper articles are hearsay and not admitted for the truth of the matter asserted in them. Construed in the light most favorable to the defendant, they cannot demonstrate by a preponderance of the evidence that the plaintiffs art was of a recognized stature, and that no reasonable jury could find otherwise. Experts need to weigh in here, and the trial court and perhaps this court need to come up with a clearer definition of when works of art achieve “recognized stature.”
For now, however, those who are purchasers or donees of art had best beware. To avoid being the perpetual curator of a piece of visual art that has lost (or perhaps never had) its luster, the recipient must obtain at the outset a waiver of the artist’s rights under VARA. See 17 U.S.C. § 106A(e). Before awarding building permits for erection of sculptures, municipalities might be well advised to obtain a written waiver of the artist’s rights too. If not, once destroyed, art of questionable value may acquire a minimum worth of $20,000.00 under VARA.