concurring.
I write separately because I would reach the same result as the majority, but for a different reason. Specifically, I would hold, as a matter of law, that Pollara’s painting was not a work of recognized stature.
While the concept of “recognized stature” under VARA may give rise to some difficult cases, it seems clear that a work that has never been exhibited cannot, as a matter of law, be a work of recognized stature. The plain language of the provision suggests that the work must have attained a recognized stature by the time it is destroyed. As Professor Ginsburg has observed, “If a work has not been publicly displayed before its owner destroys it, how can the work be of ‘recognized’ stature?” Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 Colum.-VLA J.L. & Arts 477, 480 n. 19 (1990).
I respectfully disagree with the majority’s ground for affirming — that Pollara’s 300-square-foot mural was not, as a matter of law, a “work of visual art” within the meaning of 17 U.S.C. § 101. VARA excludes from “work of visual art” status any “promotional ... material.” 17 U.S.C. § 101 (emphasis added). It does not state that all works that “promote” are not works of visual art. In short, I don’t believe the exclusion supports the majority’s statement that “Drawings and paintings are protected, but only if they do not advertise or promote.” (Maj. Op. at 269.) That broad construction of the exclusion suggests that a painting commissioned to promote the Olympics, or a sculpture commissioned to promote AIDS awareness, could never receive protection under VARA. Also, there is nothing in the statute that makes the purpose for which a work was created, or the manner in which it is first exhibited, dispositive in determining whether the work is “promotional material” at the time it is destroyed. Specifically, there is nothing that suggests that a work originally created for the purpose of *272promoting an event, product or cause could never, over time, achieve the status of a work of recognized stature, and thus be deserving of protection under VARA.
Accordingly, I believe that the promotional aspect of Pollara’s mural creates, at most, a potential fact question as to whether the work was a “work of visual art” protected by VARA. That the impetus for the mural was to promote the Gideon Coalition’s cause should no doubt be a factor in the determination whether the mural was merely promotional material. So should the fact that the Gideon Coalition supplied some text for the mural. The rest of the standard, ie., precisely how a factfinder should distinguish between a “work of visual art” and mere “promotional material,” need not be decided here because the case can be so readily disposed of on other grounds.