United States Court of Appeals
For the First Circuit
No. 05-1970
DAVID PHILLIPS,
Plaintiff, Appellant,
v.
PEMBROKE REAL ESTATE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lipez, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Andrew D. Epstein, with whom Lucy Lovrien was on brief, for
appellant.
Scott P. Lewis, with whom Edwards Angell Palmer & Dodge LLP
was on brief, for appellee.
August 22, 2006
LIPEZ, Circuit Judge. This case raises important
questions about the application of the Visual Artists Rights Act of
1990 ("VARA"), 17 U.S.C. § 106A, to "site-specific art", which 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 intended for the work to retain its meaning
and integrity. In a work of "site-specific art", one of the
component physical objects is the location of the art. To remove
a work of site-specific art from its original site is to destroy
it.
I.
David Phillips brought suit against Pembroke Real Estate,
Inc. in federal district court, asserting that the removal of any
or all of his work, consisting of multiple pieces of sculpture and
stonework, from Eastport Park in South Boston would violate his
statutory rights under VARA and the Massachusetts Art Preservation
Act ("MAPA"), Mass. Gen. Laws ch. 231, § 85S. The district court
ruled that VARA recognized integrated art, and that most of
Phillips' sculptures and stonework in the Park constituted "one
integrated 'work of visual art'" -- with the remaining pieces being
"individual free-standing pieces of sculpture, which are not
integrated into the other pieces." It also held that Phillips'
integrated work of art was an example of site-specific art. But
the court held that Pembroke could remove Phillips' works from the
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Park pursuant to VARA's so-called "public presentation" exception.
See 17 U.S.C. § 106A(c)(2).
Phillips challenges that reading of the public
presentation exception on appeal. Although we disagree with the
district court's reasoning (we hold that VARA does not apply to
site-specific art at all), we affirm the decision of the district
court permitting Pembroke to remove Phillips' works from the Park.
II.
A. The artist
Phillips is a nationally recognized sculptor who works
primarily with stone and bronze forms that he integrates into local
environs. In many of his sculptures, the design of the stones is
incorporated into the landscape -- such as a private project in
Ogunquit, Maine, where a band of rock was extended into a bronze
tributary in the ground, which, in sunlight, glistened like a
nearby stream. In some of his other works, Phillips has merged
metals or polished stone with aged, naturally-shaped boulders.
Phillips' commissioned work from the past twenty years
can be found at private companies and universities and in public
spaces across the United States -- in places such as Massachusetts,
Washington, D.C., New York, and Utah -- and internationally -- in
places such as Tokyo, Japan and Colombia. His work has been
profiled in both Japanese and American art magazines, and featured
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in galleries and museums in, among many places, New York City and
Maine. His 1993 promotional brochure details his artistic themes:
It is Phillips' inherent reverence for natural beauty in
this ecologically ravaged world that influences all his
decisions, particularly when he recontextualizes a stone
by replacing part of its form with a man-made surrogate
or when he gracefully applies typical landscaping and
architectural materials along with natural stone and
traditional art materials into new equations of form and
function.
B. The Park
Eastport Park (the "Park"), which was completed in its
current form in the spring of 2000, is located across from Boston
Harbor in the South Boston Waterfront District. The Park is
roughly rectangular in shape. Its borders are formed by the World
Trade Center East Office building to the west, D Street to the
east, Seaport Boulevard to the north, and New Congress Street to
the south. The Park is a public sculpture park with a nautical
theme.
In addition to Phillips, three other artists also crafted
art located in the Park. Japanese sculptor Susumu Shingu created
tall kinetic sculptures, Judy McKie contributed bronze, fish-shaped
benches, and landscape architect Craig Halvorson designed a pergola
(a shady resting place, made of rustic work or latticework on which
plants, such as climbing shrubs or vines, are grown). The Park
also contains paths that are inlaid with granite paving stones,
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large granite boulders, and flora meant to evoke an aquatic
environment.
Defendant Pembroke Real Estate, Inc. ("Pembroke"), a
Fidelity Investments company, leases the land on which the Park is
built from the Massachusetts Port Authority ("Massport"). Massport
and the Boston Redevelopment Authority must approve any changes to
the design of the Park. The Park is required to be open to the
public, free of charge, twenty-four hours a day.
C. Phillips' work in the Park
In 1999, Pembroke commissioned Phillips to work on the
Park in conjunction with the development of the World Trade Center
East office building that forms the Park's western border.
Phillips worked closely with Halvorson on the design of the Park.
In fact, he had an oral agreement with Halvorson to act as the
artist who worked with the landscape specialists. As part of his
work with Halvorson, Phillips aided in the design of a series of
repeated spirals that run along the axis of the Park from the
northeast to the southwest corner.
To establish the terms of the commission, Phillips and
Pembroke executed two contracts in August 1999. Under the
"Eastport Park Artwork Agreement", Phillips created approximately
twenty-seven sculptures for the Park, comprised of fifteen
abstract bronze and granite pieces and twelve realistic bronze
sculptures of various aquatic creatures, including frogs, crabs,
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and shrimp. Under the "Eastport Park Stonework Agreement",
Phillips was responsible for the design and installation of stone
walls, granite stones inlaid into the Park's walkways, and other
landscape design elements. Most of Phillips' work in the Park is
organized along the diagonal axis running from the northeast to the
southwest corner, at the center of which is his large spherical
sculpture entitled "Chords", the centerpiece of the Park, which
Phillips personally carved from granite.
Phillips designed a bronze medallion with Zodiac signs,
which crowns an S-shaped circular granite path, also of Phillips'
design; outlying sculptures off of the main axis (many bronze
crabs, frogs, and shrimp and a large seashell); and the curve
motifs. He worked with a stone mason to choose and place the rough
lichen-covered, Maine-quarried stone, and he selected the large
granite stones that he used as part of his sculptures to mirror the
large granite stones along Boston Harbor. Phillips' work in the
Park is unified by a theme of spiral and circular forms.
D. Pembroke's redesign of the Park and the preliminary injunction
In 2001, Pembroke decided to alter the Park. It retained
Elizabeth Banks, a British landscape artist, to conduct the
redesign. Konstantine Krekis, a member of the original design
team, also contributed to the redesign. Believing that the Park's
original design had conceptual problems, Pembroke wanted to
simplify walkways and include more plants for better shade.
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Pembroke also wanted to remove much of the original stone, which
had caused maintenance problems.
Banks' redesign plan called for the removal and
relocation of Phillips' sculptures. Phillips protested. In
January 2003, Pembroke agreed to retain Phillips' rough stone walls
and all but one of his sculptures. The new redesign plan would
also relocate some of the granite paving and change several
walkways and finished granite objects. Objecting to this revised
plan, Phillips filed suit in federal district court, seeking
injunctive relief under VARA and MAPA.
On August 21, 2003, following a nonevidentiary hearing,
the district court issued a temporary restraining order enjoining
Pembroke from altering the Park. Subsequently, Pembroke declared
its return to the original redesign plan, which would remove nearly
all of Phillips' work from the Park. After a two-day evidentiary
hearing, the district court issued a memorandum and order in which
it found that Phillips had established the likelihood of showing:
(1) that most, but not all, of his work in the Park constituted
"one 'integrated work of visual art,'" see Phillips v. Pembroke
Real Estate, Inc., 288 F. Supp. 2d 89, 98 (D. Mass. 2003)
(hereinafter "Phillips I"); (2) "an artist has no right to the
placement or public presentation of his sculpture under the
exception in § 106A(c)(2)," VARA's public presentation exception (a
finding that applied to Phillips' work as both integrated art and
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site-specific art), id. at 100; and (3) that because "the
environment of Phillips' integrated sculpture along the axis of the
Park is a critical element of those works, [] changing the location
of the sculpture constitutes an [impermissible] alteration under"
MAPA, id. at 102. Therefore, according to the district court,
Pembroke could move Phillips' work from the Park consistent with
VARA, so long as Pembroke did not "alter, modify or destroy the
'works of visual art' as [the court] [had] defined them." Id. at
100. In other words, consistent with VARA, Phillips' free-standing
works could be moved; and the multi-element, integrated work of art
along the northeast-southwest axis could be disassembled and moved
piecemeal, so long as individual pieces comprising this integrated
work of art were not altered, modified, or destroyed. However,
under the broader protections of MAPA for site-specific art, the
court granted a preliminary injunction preventing Pembroke from
altering the Park.
E. Subsequent procedural history
Both parties filed interlocutory appeals to this court
pursuant to 28 U.S.C. § 1292(a)(1). In the interim, the district
court certified the question of whether MAPA protected Phillips'
work in the Park to the Massachusetts Supreme Judicial Court
("SJC"), and the federal appeals were stayed pending the SJC's
resolution of this state law question. See Phillips v. Pembroke
Real Estate, Inc., 819 N.E.2d 579 (Mass. 2004) (hereinafter
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"Phillips II"). The specific question certified to the SJC was:
"to what extent does the Massachusetts Art Preservation Act, Mass.
Gen. Laws ch. 231, § 85S (1984), protect the placement of 'site
specific' art?" Id. at 580.
The SJC concluded that MAPA did not protect site-specific
art. See id. at 585-86. In particular, the SJC highlighted the
following: (1) "Phillips's contention that the site can be the
'medium' of such art [wa]s not consistent with [] dictionary
definitions [of the statutory term 'medium']," id. at 584; (2) "the
Legislature was concerned not only with creating new rights for
artists, but also with protecting the rights of property owners who
commission artworks that become attached to real property," id.;
and (3) "[i]f the Legislature intended to include the type of
site-specific art at issue here within MAPA's protections, it would
entail a radical consequence for owners of land," id.
In light of the SJC's ruling and its own prior conclusion
that it was possible for Phillips' sculptures to be removed from
the Park consistent with VARA because of VARA's public presentation
exception, the district court vacated the preliminary injunction it
had granted and entered judgment on all counts. On appeal, neither
party disputes the district court's finding that Phillips' work in
the Park along the northeast-southwest axis is both integrated and
site-specific art. Additionally, neither party contests the fact
that moving any or all of this integrated work from the Park would
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constitute a physical alteration of the work. Phillips, for his
part, does not claim on appeal that VARA prohibits the removal of
integrated art that is not site-specific.1 Instead, he claims that
VARA prohibits the removal of site-specific art. Therefore, he
challenges only the district court's conclusion that the public
presentation exception of VARA permits Pembroke to remove from the
Park his large, multi-element work of art, which the district court
found was both integrated and site-specific.2
III.
A. Statutory Background
VARA states in relevant part that the "author of a work
of visual art":
(3) subject to the limitations set forth in section
113(d), shall have 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.
1
To be clear, we are not saying that, in fact, Phillips does
not believe that VARA prohibits the removal of integrated art that
is not site-specific. We are simply saying that he has not raised
that issue on appeal.
2
Attached as an appendix is a diagram of Eastport Park that
Phillips attached as Exhibit D to his "Supplemental Memorandum in
Support of His Motion for a Preliminary Injunction".
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17 U.S.C. § 106(A)(a)(3)(A) and (B). As an exception, § 106A(c)(2)
states that:
The modification of a work of visual art which is the
result of conservation, or of the public presentation,
including lighting and placement, of the work is not a
destruction, distortion, mutilation, or other
modification described in subsection (a)(3) unless the
modification is caused by gross negligence.
This is the public presentation exception. A "work of visual art"
is defined as including "a painting, drawing, print or sculpture,
existing in a single copy" or in a limited edition. 17 U.S.C.
§ 101.
In Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir.
1995), the Second Circuit, citing VARA's legislative history,
explained that VARA:
protects both the reputations of certain visual artists
and the works of art they create. It provides these
artists with the rights of "attribution" and "integrity"
. . . . These rights are analogous to those protected by
Article 6 bis of the Berne Convention, which are commonly
known as "moral rights." The theory of moral rights is
that they result in a climate of artistic worth and honor
that encourages the author in the arduous act of
creation.
Id. at 83 (citing H.R. Rep. No. 101-514, at 5, reprinted in 1990
U.S.C.C.A.N. 6915, 6917).3 "VARA grants three rights: the right of
3
The Berne Convention is "an international copyright treaty
providing that works created by citizens of one signatory nation
will be fully protected in other signatory nations, without the
need for local formalities. The treaty was drafted in Berne in
1886 and revised in Berlin in 1908." Black's Law Dictionary, 8th
ed. (1999); see also Wikipedia, "Berne Convention for the
Protection of L i terary and Artistic Work s,"
http://en.wikipedia.org/wiki/Berne_Convention (last visited July
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attribution, the right of integrity and, in the case of works of
visual art of 'recognized stature,' the right to prevent
destruction." Id.
The right of attribution generally consists of the right
of an artist to be recognized by name as the author of
his work or to publish anonymously or pseudonymously, the
right to prevent the author's work from being attributed
to someone else, and to prevent the use of the author's
name on works created by others, including distorted
editions of the author's original work. The right of
integrity allows the author to prevent any deforming or
mutilating changes to his work, even after title in the
work has been transferred.
Id. at 81 (internal citations omitted). In other words, these
moral rights protect what an artist retains after relinquishing
ownership (and/or copyright) of the tangible object that the artist
has created.
Rep. Robert W. Kastenmeier, Chair of the House Judiciary
Subcommittee on Courts, Intellectual Property, and the
Administration of Justice, summarized VARA's purpose this way:
[VARA] is . . . a pragmatic response to a real problem.
It is directed towards development of Federal rights that
would enable visual artists to protect the integrity of
their works and the fact of their authorship . . . . We
should always remember that the visual arts covered by
this bill meet a special societal need, and their
27, 2006) ("The Berne Convention for the Protection of Literary and
Artistic Works, usually known as the Berne Convention, is an
international agreement about copyright, which was first adopted in
Berne, Switzerland in 1886. It was developed at the instigation of
Victor Hugo, and was thus influenced by the French 'right of the
author' (droit d'auteur), which contrasts with the Anglo-Saxon
concept of 'copyright', which has only been concerned with economic
protection.").
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protection and preservation serve an important public
interest.
H.R. Rep. No. 101-514, at 5.
B. Site-specific art
During the preliminary injunction hearing, one of
Phillips' experts, Daniel Ranalli, a professor of art history at
Boston University, stated:
Beginning at least with the last third of the 20th
century, and continuing through the present, the notion
of sculpture has undergone a radical redefinition. In
essence, sculpture has come off [of] its pedestal,
functioning in the space in and around its site, and
playing an integral role in defining that space.
Phillips I, 288 F. Supp. 2d at 95. According to the district
court's summary, another of Phillips' experts, Richard Barreto,
Executive Director of the Urban Arts Institute of the Massachusetts
College of Art, who is involved in the selection of artists to
create art in public spaces, testified that:
[T]oday the concept of "site specificity" is the
"rallying cry" of public artists who seek to create a
piece that derives enhanced meaning from its environment.
Much of modern sculpture does not exist separate from its
context, but rather integrates its context with the work
to form, ideally, a seamless whole.
Id. Essentially, for site-specific art, the location of the work
is an integral element of the work. Because the location of the
work contributes to its meaning, site-specific art is destroyed if
it is moved from its original site. See Francesca Garson, Note,
Before That Artist Came Along, It Was Just a Bridge: The Visual
Artists Rights Act and the Removal of Site-Specific Artwork, 11
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Cornell J.L. & Pub. Pol'y 203, 211 (2001) ("It is clear that the
community of respected American artists and art authorities regard
the crafted work and the site of site-specific artworks as an
indivisible whole. The artists who create these works explain that
the meaning and purpose behind the art lie squarely within its
physical location.")
As Halvorson stated in an affidavit, "[t]his view
contrasts with so-called 'plop-art' where a separately conceived
art object is simply placed in a space." Phillips I, 288 F. Supp.
2d at 95. A piece of plop-art does not incorporate its
surroundings. Site-specific art is the opposite of plop-art. In
summary, as the district court found below, "[t]he undisputed
expert testimony is that in site-specific sculpture, the artist
incorporates the environment as one of the media with which he
works." Id.
C. The district court's opinion
We must examine closely the arguments that Phillips
presented to the district court, and the district court's responses
to those arguments, for two reasons. First, both the statute and
the underlying concepts (integrated art and site-specific art) are
somewhat complex. Second, the parties could not even agree about
the issue on appeal. We must get these basics sorted out before we
can analyze the competing arguments.
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1. Phillips' arguments to the district court
Before the district court, Phillips sought to prevent
Pembroke from altering, moving, or modifying any of his work in the
Park in any way. At this time in the chronology of the case, the
district court had not yet made its factual finding that Phillips'
sculpture and stonework along the northeast-southwest axis
comprised a single work of integrated art. Therefore, Phillips
first argued that "his sculptures and the related stonework are
works of visual art designed specifically for Eastport Park and
they reflect and enhance the Park's location adjacent to Boston
Harbor and are inseparable from it." In other words, each of his
works was site-specific, i.e., each individual piece was integrated
with its location in the Park. Phillips also argued that VARA
protected each of these works from any change in location because
such a change would impermissibly alter them. Under this argument,
all of his pieces -- be it any one of his sculptures, or one of the
Stone Elements -- "are meaningful only if they remain in Eastport
Park, the location for which they were created." As Phillips
elaborated:
if any sculptures are moved or removed, the spirit,
integrity and character of [the] installations will be
destroyed . . . . [because] the meaning and purpose of
the art derives in large part from its physical locations
. . . . [E]ven if the sculptures and stonework are
rebuilt elsewhere someday, the artwork will never be the
same as [I] intended it to be, and as it currently
exists.
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As a corollary to this "site-specific, individual work" argument,
Phillips also argued that "[r]emoval of [his] site-specific work
would not be a permitted 'presentation' or 'placement of the work
under the section 106A(c)(2) exception," i.e., that Pembroke's
proposed removal of some or all of his work from the Park did not
fall within VARA's public presentation exception, which permits
certain categories of alterations to works of art.4
As alternatives, Phillips asserted two integrated work of
art arguments in addition to his site-specific, individual work of
art argument. First, he contended that the "Park contains a
sufficient number of interrelated works of visual art created by
Phillips, so that any modification of any of the interrelated Parts
of the Park will have an impact on the other related works, and
therefore will be a violation of VARA." In other words, apart from
any claim that each of the individual sculptures was site-specific,
Phillips claimed that each of his individual pieces in the Park was
an element of a single, larger, multi-element work of integrated
art such that the removal or modification of any one of these
elements in the Park would harm the larger, integrated work and
violate VARA.
As a second integrated work of art argument, Phillips
argued that while "this court may not have to determine that the
4
As noted, this "corollary" argument becomes Phillips' sole
argument on appeal.
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Park as a whole is a work of visual art protected by VARA," "[i]f
[keeping all of my work in the Park] means that Eastport Park must
be declared to be an inviolate work of art [as a whole], then so be
it." In other words, Phillips argued that, if necessary, he would
assert that the Park as a whole, including the work of the other
artists, was a single work of integrated art.
2. Integrated art
The district court addressed the integrated art question
first:
The first question is whether Phillips' twenty-seven (27)
sculptures constitute a single work of visual art or
instead are discrete works of art that must be treated
separately under VARA. A related issue is whether the
Park as a whole should be treated as a work of visual
art.
. . .
Phillips takes the position that his artwork extends
beyond the[] individual sculptures and includes the
finished and rough-hewn granite and stone pavings and the
stone walls that he designed and placed, including the
"Chords" path and the medallion path (the "Stone
Elements"). He also contends that all of his sculptures
form one integrated, interrelated work of visual art. To
place the sculptural elements in different alignments
relative to one another . . . would destroy sight lines
and alter the deliberately-crafted spatial relationships
among the paths, granite walls, and individual pieces of
sculpture.
Phillips I, 288 F. Supp. 2d at 97-98.
The district court had to decide whether the phrase "work
of visual art", as used in VARA, encompassed the concept of
integrated art. The district court first looked to the few
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existing cases addressing VARA. The court found that "courts have
held that works composed of a variety of pieces and in a variety of
media may still constitute one work of 'visual art' under VARA."
Id. at 98 (citing Carter, 71 F.3d at 83-84; English v. BFC & R E.
11th St. LLC, No. 97-7446, 1997 WL 746444, at *3 (S.D.N.Y. 1997);
and Pavia v. 1120 Ave. of the Americas Assoc., 901 F.Supp. 620,
627-28 (S.D.N.Y. 1995)). The district court next looked to
legislative history, particularly a statement instructing courts
to:
use common sense and generally accepted standards of the
artistic community in determining whether a particular
work falls within the scope of the definition [of "work
of visual art"]. Artists may work in a variety of media,
and use any number of materials in creating their works.
Therefore, whether a particular work falls within the
definition should not depend on the medium or materials
used.
Id. at 98-99 (quoting H.R. Rep. No. 101-514, at 6). Based on the
case law and legislative history, the district court found that
VARA embraced the concept of integrated art: "Despite [Congress']
narrow definition, courts have held that works composed of a
variety of pieces and in a variety of media may still constitute
one work of 'visual art' under VARA." Id. at 98.
What remained was a question of fact: whether all of
Phillips' work in the Park constituted a single work of visual art?
The district court found that:
the sculptures along the northwest to southeast axis of
the Park, including "Chords" and the medallion sculpture,
as well as the Stone Elements, are one integrated "work
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of visual art." It begins with a spiral in the northwest
corner along Seaport Boulevard, includes Plaintiff's
"Chords" sculpture, and continues along a spiral path of
mosaic paving stone, culminating in the bronze medallion.
In determining that the sculptures along this axis, as
well as the related Stone Elements, are one work of
visual art, the Court relies on the integrated marine
theme and recurring spirals, as well as the use of marine
granite boulders and pavers. However, the remainder of
the sculptures . . . that do not lie along the axis are
not part of the same work of visual art. While these
sculptures share the marine theme, the Court finds these
pieces are individual free-standing pieces of sculpture,
which are not integrated into the other pieces by spirals
or granite.
Id. at 98.5 In other words, the district court concluded that most
of Phillips' pieces in the Park constituted a single work of
integrated art, but it rejected his position that all of his pieces
comprised a single work of art.
The district court then addressed Phillips' argument that
the Park itself is an integrated work of art:
[o]ne novel issue is whether a park can be a "work of
visual art" under VARA. Phillips contends that the
Eastport Park as a whole is one large integrated piece of
"sculpture."
The Court rejects Plaintiff's argument that the Park as
a whole is a work of visual art. As [] Barreto conceded,
a park does not fit within the traditional definition of
sculpture . . . . Conceivably, a sculptor could design
a sculpture garden that includes multiple inter-related
sculptural elements that form an integrated work of
visual art . . . . However, here, many elements in the
Park were not created by Phillips . . . . Substantial
5
The district court mistakenly refers to the works along the
"northwest-southeast" axis of the Park, Phillips I, 288 F. Supp. 2d
at 93, 98. The correct compass directions are northeast and
southwest, as found later in the district court's order. See id.
at 105.
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areas of the Park are unrelated to Phillips' sculpture
and not integrated with it . . . . While Phillips
certainly assisted in designing the stone elements in the
paths and walls and in placing his own sculptures, the
Park as a whole is not an integrated work of art.
Id. at 98-99 (internal citation omitted). In deciding whether the
Park was an integrated work of art, the district court left open
the legal question of whether a park could ever be a "work of
visual art" as defined by VARA. Instead, it held that, assuming a
park could be a work of integrated art recognized by VARA, the Park
was not such a work.
Finally, the district court's conclusion that VARA
applied to integrated art, and its related conclusion that Phillips
had created a work of integrated art in the Park, did not prevent
the removal of Phillips' works from the Park. That was so because
the district court also concluded that integrated art was subject
to the public presentation exception of VARA, § 106A(c)(2).
Phillips' integrated work of art could still be disassembled and
moved so long as the "works of visual art" are not "alter[ed],
modif[ied], or destroy[ed]." Id. at 100.6
6
As we explain further, this ruling about the application of
VARA to integrated art, exclusive of site-specific art, is not
challenged on appeal. It is a fact that art museums are filled
with works of art comprised of multiple pieces. These works often
travel from museum to museum. Their disassembly and reassembly for
the purpose of relocation at another museum does not create VARA
liability.
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3. Site-specific art
There remained Phillips' site-specificity argument. If
Phillips could show that: (1) his work in the Park was site-
specific art; (2) VARA protected site-specific art; and (3) that
the public presentation exception did not apply to site-specific
art, none of his work could be moved, even on a piecemeal basis.
Phillips convinced the district court that most of his
work in the Park was site-specific as well as integrated. In
discussing the issue of site-specificity as part of its discussion
of MAPA, the district court made the following factual finding:
I find that Phillips' sculpture has a marine theme that
integrates the large granite stones of the park with his
sculpture and the granite sea walls of Boston Harbor into
one interrelated visual work of art. Therefore, Phillips
used the harborside location at Eastport Park as one
medium of his art. To move Phillips' integrated work of
visual art (i.e., the sculptures, boulders, and granite
paths along the axis, which I described in the VARA
discussion) to another location (particularly a non-
marine one) would be to alter it physically.
Phillips I, 288 F. Supp. 2d at 102.7
Having made this finding on the site-specific nature of
Phillips' work, the district court explained the positions of
Phillips and Pembroke on site-specificity:
7
The district court's factual finding that the works along
the northeast-southwest axis constituted a single work of
integrated art, and that this integrated work was also site-
specific, may explain why, on appeal, Phillips abandons his
argument that his sculptures and stonework, on an individual basis,
including the now free-standing ones, are site-specific.
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[Phillips] [] argues that his work is so site-specific
that moving it would be an intentional destruction or
modification under VARA. Taking the sculpture from its
current location and locating it on a private campus in
Rhode Island not near the ocean . . . would be like
painting over the background landscape in the Mona Lisa.
[Pembroke] contends that the "public presentation"
exclusion in § 106A(c)(2) permits it to move plaintiff's
sculptures from their current placement to another, just
as the statute would not prevent a curator from moving
the Mona Lisa from one wall in the Louvre to another.
Section 106A(c)(2) has been interpreted to exclude from
VARA's protection "site-specific" works, works that would
be modified if they were moved.
Id. at 99 (citation omitted). The district court then referenced
one of the few relevant cases, see Bd. of Managers of Soho Int'l
Arts Condo. v. City of New York, No. 01-1226, 2003 WL 21403333, at
*10 (S.D.N.Y. 2003) (stating that VARA's objective "is not . . . to
preserve a work of visual art where it is, but rather to preserve
the work as it is") (hereinafter "Soho I"); Bd. of Managers of Soho
Int'l Arts Condo. v. City of New York, No. 01-1226, 2003 WL
21767653, at *3 (S.D.N.Y. 2003) (hereinafter "Soho II"). It then
found Pembroke's legal argument "more persuasive because it is
rooted in the plain language of the exclusion in § 106A(c)(2) as
well as the statute's legislative history." Phillips I, 288 F.
Supp. 2d at 100; see also id. ("'Generally, the removal of a work
from a specific location comes within the [presentation] exclusion
because the location is a matter of presentation.'") (quoting H.R.
Rep. No. 101-514, at 12).
-22-
Finally, the district court highlighted the fact that the
public presentation exception "was crafted after the widely-
publicized dispute between the General Services Administration and
the artist Richard Serra over the removal of Serra's 'site-
specific' piece 'Tilted Arc.'" Id.; see also Serra v. United States
Gen. Serv. Admin., 847 F.2d 1045 (2d Cir. 1988). In Serra, the
Second Circuit rejected the plaintiff's argument that the removal
of an integrated, site-specific, government-owned work of art from
federal property violated the free expression and due process
rights of the artist. See Serra, 847 F.2d at 1045. The district
court inferred that because VARA and the public presentation
exception were adopted after Serra, Congress must have been aware
of site-specific art. Yet VARA says nothing that suggests special
protection for site-specific art. Therefore, the district court
concluded that:
an artist has no right to the placement or public
presentation of his sculpture under the exception in
§ 106A(c)(2). [Pembroke] is not obligated to display the
works in the Park, as VARA provides no protection for a
change in placement or presentation. However, under
VARA, [Pembroke] is under an obligation not to alter,
modify or destroy the "works of visual art" as I have
defined them.
Id. at 100.8
8
When the district court refers to the obligation of Pembroke
not "to alter, modify, or destroy the 'works of visual art' as I
have defined them," it means that the individual pieces of
sculpture, and the Stone Elements, that comprise the integrated
work of art must not be altered, modified, or destroyed.
Otherwise, the disassembled work of integrated art could not be
-23-
This is the conclusion that Phillips challenges on
appeal. As he puts it: "the District Court misinterpreted the
language and Legislative history of the [public presentation
exception], and [] VARA protects Phillips' artwork from the removal
planned by Pembroke." Pembroke asserts, inter alia, that the
district court ruled correctly that the public presentation
exception negates any protection VARA extends to site-specific art.
More fundamentally, it argues that VARA does not apply to site-
specific art at all.
IV.
Our review of the district court's decision is de novo.
See Riva v. Commonwealth of Massachusetts, 61 F.3d 1003, 1007 (1st
Cir. 1995) ("A district court's resolution of a question of
statutory interpretation engenders de novo review in the court of
appeals."). "We are not wedded to the lower court's rationale,
but, rather, may affirm its order on any independent ground made
manifest by the record," InterGen N.V. v. Grina, 344 F.3d 134, 141
(1st Cir. 2003). "As in all statutory construction cases, we begin
with the language of the statute." Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 450 (2002). Furthermore, "[w]e have consistently
held that when the plain meaning of a statute is clear, we are not
to look beyond that text to discern legislative intent." Palmieri
v. Nynex Long Distance Co., 437 F.3d 111, 115 (1st Cir. 2006);
reassembled later at another location.
-24-
see also Bonilla v. Muebles J.J. Álvarez, Inc., 194 F.3d 275, 277
n.2 (1st Cir. 1999) (When "the plain meaning of the statute
resolves the issue sub judice, we need not rummage through the
legislative history or search for other interpretive aids.").
A. The district court's understanding of site-specific art and
VARA
To help explain our holding that VARA does not apply to
site-specific art, we must begin with a restatement of the district
court's view of the interaction between VARA and site-specific art.
On the one hand, the district court accepted the concept of site-
specific art. It credited the unopposed testimony of Ranalli,
Phillips' expert, "that for site specific art, the location of the
work is a constituent element of the work." Phillips I, 288 F.
Supp. 2d at 95. The district court understood that "[u]nder this
approach, because the location defines the art, site-specific
sculpture is destroyed if it is moved from the site." Id. The
district court also found that "[t]o move Phillips' integrated work
of visual art (i.e., the sculptures, boulders, and granite paths
along the axis . . . described in the VARA discussion) to another
location . . . would be to alter it physically," id. at 102.
On the other hand, in the section of its opinion
addressing Phillips' site-specificity argument -- entitled
"'Public-Presentation' Exclusion" -- the district court noted that
"Section 106A(c)(2) has been interpreted to exclude from VARA's
protection 'site-specific' works, works that would be modified if
-25-
they were moved." Phillips I, 288 F. Supp. 2d at 99. It then
referenced Soho I ("[T]he point of VARA 'is not . . . to preserve
a work of visual art where it is, but rather to preserve as work as
it is,'" 2003 WL 21403333, *10) and Soho II ("'[N]owhere in VARA
does the statute make any legal distinction between site-specific
or free-standing works,'" 2003 WL 21767653, at *3). The district
court concluded "that an artist has no right to the placement or
public presentation of his sculpture under the exception in
§ 106A(c)(2)." Phillips I, 288 F. Supp. 2d at 100. In short, the
district court found that while VARA applies to site-specific art,
the public presentation exception permits the removal of site-
specific art, e.g., Phillips' work in the Park.
Without in any way diminishing our respect for the
district court's careful handling of this difficult case, we find
its analysis of VARA's relationship to site-specific art
unpersuasive. By definition, site-specific art integrates its
location as one of its elements. Therefore, the removal of a site-
specific work from its location necessarily destroys that work of
art. Here, the district court concluded that VARA recognized site-
specific art as a type of integrated art, and then concluded that
VARA treats site-specific art the same way that it treats other
integrated art.9 However, a work of integrated art, unless it is
9
A simple example of a work of integrated art that is not
site-specific is Marcel Duchamp's work "Bicycle Wheel", a sculpture
integrating a bicycle fork, a bicycle wheel, and a stool in a
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a site-specific work, is not destroyed by removal from its
location.
By concluding that VARA applies to site-specific art, and
then allowing the removal of site-specific art pursuant to the
public presentation exception, the district court purports to
protect site-specific art under VARA's general provisions, and then
permit its destruction by the application of one of VARA's
exceptions. To us, this is not a sensible reading of VARA's plain
meaning. Either VARA recognizes site-specific art and protects it,
or it does not recognize site-specific art at all.
B. Phillips' position on appeal
Phillips recognizes the same tension in the district
court's holding that we have identified, but he resolves it
differently. He agrees with the district court's position that
VARA applies to site-specific art (as well as integrated art), but
disagrees with the district court's view that the public
presentation exception permits the removal of site-specific art.
particular arrangement. See Museum of Modern Art, "Bicycle Wheel",
http://www.moma.org/collection/browse_results.php?object_id=81631
(last visited July 27, 2006)(image); see also Wikipedia, "Bicycle
Wheel", http://en.wikipedia.org/wiki/Bicycle_Wheel (last visited
July 27, 2006). However, this sculpture does not integrate its
location and could be part of a traveling exhibition of Duchamp's
work without losing its artistic meaning or being destroyed.
-27-
1. The public presentation exception
To circumvent the district court's view of the public
presentation exception,10 Phillips argues that VARA prevents the
removal of site-specific art because the public presentation
exception does not apply to site-specific art. His argument begins
with a claim that the words "presentation" and "placement" in the
public presentation exception are ambiguous on the issue of
location. We find nothing remotely ambiguous about the word
"presentation", which is modified by the word "placement". The
word "placement" inescapably means location. Noting this fact,
Phillips claims that "the word placement could suggest something
that is temporary, as in the placement of furniture, or it could
refer to something more permanent, as in the placement of a massive
piece of sculpture." Phillips then asks the question that he
describes as pivotal: "does the word placement include something
that is securely fixed in a particular position as in the case of
. . . [his] integrated work of visual art that spans the northeast-
southwest axis of the Park?"
10
We repeat here the language of § 106A(c)(2), the public
presentation exception:
[t]he modification of a work of visual art which is the
result of conservation, or of the public presentation,
including lighting and placement, of the work is not a
destruction, distortion, mutilation, or other
modification described in subsection (a)(3) unless the
modification is caused by gross negligence.
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To answer this question, Phillips invokes the doctrine
of noscitur a sociis, which counsels that words in a statute should
be understood in the context of the terms around it. See Microsoft
Corp. v. Comm'r, 311 F.3d 1178, 1184 (9th Cir. 2002). Relying on
this doctrine, Phillips asserts that "lighting and placement must
be read to be related to each other and be words of equal
significance. If lighting refers to non-permanent changes in
public presentation, then placement must also refer to non-
permanent changes in public presentation." Phillips continues:
"[b]uried within the "placement" term is the assumption that the
object is moveable, and can be placed in various locations. This
assumption must be examined. Site-specific artwork is a well-
recognized form of art, but it is not always moveable."
We agree with Phillips that the premise of the public
presentation exception is artwork that can be moved in some
fashion, such as paintings or sculptures -- that is, art that is
not permanently affixed or "integrated" in such a way that the mere
act of moving it would destroy it. The possibility of change
without destruction is implicit in the public presentation
exception. The public presentation exception defines the types of
changes, such as those in lighting and placement, that do not
constitute "destruction, distortion, or mutilation". But Phillips
draws a startling conclusion from the public presentation
exception's focus on permissible change in the presentation of a
-29-
work of visual art: because the public presentation exception
addresses itself only to "plop-art", that is, those works of art
subject to temporary changes in such matters as lighting and
placement, and declares further that such modifications of a work
of visual art are not "destroying, distorting, or mutilating" them,
the public presentation exception does not apply to site-specific
art, which, as everyone acknowledges, cannot be removed from its
location without destroying it. This approach leaves Phillips with
the district court's holding that VARA applies to site-specific
art, minus the court's related holding that the public presentation
exception permits the removal of such art. In this way, the
tension that we identified in the district court's decision
disappears.
2. Dual regime
With his position on VARA and the public presentation
exception, Phillips argues that VARA essentially creates a dual
regime -- words that mean one thing as applied to non-site-specific
art have a different meaning when applied to site-specific art.
Beyond his reading of the public presentation exception itself,
Phillips cites only one other provision of VARA in support of his
dual regime argument -- § 113(d)(1)(A) of VARA, the so-called
"building exception", which excludes from VARA's protection "a work
of visual art [that] has been incorporated or made a part of a
building in such a way that removing the work from the building
-30-
will cause the destruction, distortion, mutilation, or other
modification of the work as described in section 106A(a)(3)."
Phillips asserts that because VARA provides an exception to VARA
for artwork attached to buildings, but does not contain a similar
provision for site-specific art (understood as art attached to real
property), VARA must protect site-specific art.
With both the public presentation and building
exceptions, Phillips is arguing that VARA's silence on a subject is
actually evidence that the statute addresses that subject. To say
the least, this is an odd way to read a statute. If VARA actually
established such a complicated, dual regime, we would expect that
the phrase "site-specific", or some equivalent, would appear in the
language of the statute. There is no such phrase anywhere.
Indeed, we would expect much more than just a reference to site-
specific art. We would expect an elaboration of how to
differentiate between site-specific and non-site-specific art
(plop-art). That elaboration is nowhere to be found.
Moreover, the creation of a dual regime -- which would
require us, essentially, to rewrite VARA -- has potentially far-
reaching effects beyond the protection of Phillips' work in the
Park. Once a piece of art is considered site-specific, and
protected by VARA, such objects could not be altered by the
property owner absent consent of the artist. Such a conclusion
could dramatically affect real property interests and laws.
-31-
For example, as Pembroke argues in its brief, Phillips'
work in the Park "lies within a rapidly changing urban area and
extends beyond Eastport Park to Boston Harbor." If a dual regime
were created, there is the potential that:
not only would Pembroke's ability to move [Phillips']
work or alter Eastport Park be subject to Phillips'
approval, but also the owners of nearby property who had
nothing to do with the purchase or installation of
Phillips' works would be subject to claims that what they
do with their property has somehow affected the site and
has, as a result, altered or destroyed Phillips' works.
In discussing the possibility of MAPA protecting site-specific art,
the SJC echoed this concern, observing that the creation of a dual
regime under MAPA "would entail a radical consequence for owners of
land, that the Legislature directly averted for owners of
buildings. Specifically, rights afforded artists would encumber
private and public land with restrictions lasting for the life of
the artist plus fifty years, without the need for such restrictions
to be recorded in a registry of deeds." Phillips II, 819 N.E.2d at
584-85. The SJC ultimately refused to:
read such an intent into a legislative act given the
recognized legislative policy of disparaging land
restrictions (especially unrecorded ones), the common-law
doctrine disapproving the long-term burdening of
property, and the corollary judicial practice of
construing statutory provisions regarding land
restrictions in favor of freedom of alienation.
Id. at 585 (internal quotation marks omitted).
The Supreme Court has also emphasized the principle that
"statutes which invade the common law are to be read with a
-32-
presumption favoring the retention of long-established and familiar
principles, except when a statutory purpose to the contrary is
evident.” United States v. Texas, 507 U.S. 529, 534 (1993)
(internal citations and quotation marks omitted); see also Astoria
Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108 (1991). "In
such cases, Congress does not write upon a clean slate. In order
to abrogate a common-law principle, the statute must speak directly
to the question addressed by the common law." Texas, 507 U.S. at
534 (internal citations and quotation marks omitted). Phillips'
argument that VARA's silence on the subject of site-specific art
affords special protection to site-specific art hardly meets this
requirement of direct address.11
Ultimately, we agree with Pembroke's position that
"[t]here is no basis for Phillips' claim that VARA establishes two
different regulatory regimes: one for free-standing works of art .
. . and one for site-specific art that can never be moved and must
always be displayed." VARA's plain language also requires us to
11
As a partial response to these concerns about the burdening
of property rights, Phillips cites § 106A(e) of VARA, which allows
artists to waive their VARA rights. Phillips asserts that
"Pembroke had an opportunity to require Phillips to waive his VARA
rights[, but] Pembroke failed to take advantage of this provision."
This flawed argument presupposes that VARA protects site-specific
art in the first place; Phillips has failed to prove this
presupposition. Phillips cannot argue that Pembroke must ask him
for a waiver of moral rights that he has not proven he possesses.
In other words, Phillips cannot use the possibility of a waiver of
moral rights under VARA as the basis for creating those rights in
the first instance. Phillips has turned the logic of waiver on its
head. His waiver argument is unavailing.
-33-
reject the district court's approach to site-specific art. VARA
does not protect site-specific art and then permit its destruction
by removal from its site pursuant to the statute's public
presentation exception. VARA does not apply to site-specific art
at all.12
IV.
We do not denigrate the value or importance of site-
specific art, which unmistakably enriches our culture and the
beauty of our public spaces. We have simply concluded, for all of
the reasons stated, that the plain language of VARA does not
protect site-specific art. If such protection is necessary,
Congress should do the job. We cannot do it by rewriting the
statute in the guise of statutory interpretation.
Affirmed.
12
"The words of the statute are the first guide to any
interpretation of the meaning of the statute." Greebel v. FTP
Software, Inc., 194 F.3d 185, 192 (1st. Cir. 1999). However, on
occasion, "[b]oth this court and the Supreme Court have checked a
sense of a statute's plain meaning against undisputed legislative
history as a guard against judicial error." Id. at 192. Here,
there is a dispute about VARA's legislative history. Both parties
have found statements from legislators that support their position.
Nevertheless, there is one inescapable fact about this history: the
concept of site-specific art is never mentioned by name. That
history only confirms our sense of VARA's plain meaning.
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Addendum
-35-