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39 Cumb. L. Rev. 749 Cumberland Law Review 2008-2009 Comment *749 SITE-SPECIFIC ART GETS A BUM WRAP: ILLUSTRATING THE LIMITATIONS OF THE VISUAL ARTISTS RIGHTS ACT OF 1990 THROUGH A STUDY OF CHRISTO AND JEANNECLAUDE'S UNIQUE ART Anna Belle Wilder Norton [FN1] Copyright © 2009 Cumberland Law Review; Anna Belle Wilder Norton #We believe that labels are important, but mostly for bottles of wine.$ [FN2] - Christo and Jeanne-Claude Introduction Once called the #Evel Knievel of modern art,$ [FN3] Christo Javacheff has been vilified by art critics for garnering fame and publicity with his large scale art installations. [FN4] After all, few other modern artists would be featured in People magazine under the heading #Tangerine Dream $ with a caption reading, #Christo and Jeanne-Claude are mad about saffron!$ [FN5] The article was referring to The Gates, an art installation displayed in New York City's Central Park in February of 2005 that brought Christo and his wife Jeanne-Claude unprecedented notoriety. The Gates consisted of over 7,000 steel structures strategically placed at intervals along the walkways throughout the park, each one festooned with a freeflowing panel of bright orange fabric. [FN6] The piece generated unparalleled revenues throughout New York City during the two-week installation. [FN7] Millions of people visited Central Park; shops, restaurants, and hotels*750 thrived; volunteers passed out swatches of the orange fabric used in the project and members of the Central Park Conservancy sold The Gates hats, mugs, and posters. [FN8] Bruce Willis wore an outrageous bright orange suit on the Late Show with David Letterman, joking that he found the fabric lying around in Central Park. [FN9] Orange was the new black, at least in New York. If art critics are put off by Christo and Jeanne-Claude's tendency to attract publicity, America's #everyman $ has looked on in disbelief. Why would Christo wrap a German building in fabric or open thousands of umbrellas in California and Japan, they ask, when the costs of obtaining the permits and performing the necessary tests grow to millions of dollars, and the projects are taken down in fourteen days? Some say Christo's egotistical nature drives him to #decorate $ aspects of nature that need no embellishing; [FN10] others shake their heads in disgust at the waste of money. His work has been called bizarre; people say that it doesn't mean anything. [FN11] A somewhat easy target, Christo's work has even

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39 CUMLR 749 39 Cumb. L. Rev. 749 been parodied. [FN12] He has been called a #mere maker of frames who prospered in an age when art itself was in eclipse,$ and The Gates has been described as adding a #layer of human engineering on top of something that was already engineered.$ [FN13] And now Christo and Jeanne-Claude are at it again, formulating a plan to cover a portion of the Arkansas River in Colorado with translucent fabric for a period of two weeks, a project simply called Over the River. The couple began searching for the right place for this project in the early 1990s. After observing eighty-nine rivers, they chose a portion of the Arkansas River with high banks so that steel cables could suspend the fabric, a road that runs alongside the river so that observers can look down at the installation and white *751 water that is suited for the rafting that will continue despite the covering of fabric. [FN14] In fact, the rafters will be able to see the clouds and sky overhead, through the translucent fabric. [FN15] Most recently, the U.S. Bureau of Land Management has released the 2,000 page written proposal by Christo and Jeanne-Claude for public viewing on the BLM website. [FN16] When clarifications and changes have been made to the proposal, the BLM will begin preparing the environmental impact statement, a process that will probably take 18 months and which will be followed by public hearings and comments. [FN17] The project will probably be realized by 2012, at the earliest. [FN18] Now, fast forward to the summer of 2012, when Christo and Jeanne-Claude's Over the River finally comes to fruition after decades of planning and bureaucracy-wrangling. The artists' team has spent long hours erecting the structure, and crowds even larger than those in New York who came to see The Gates have flocked to Colorado. Now, imagine that in the dead of night, several days into the display period, an #aesthetic terrorist $ manages to remove and destroy a large portion of the silvery fabric. [FN19] Perhaps the culprit is a member of #Rags over the Arkansas River,$ an opposition group that has gathered strength among local residents. [FN20] As the sun rises the next morning, onlookers can see the damage: the remnants that are left of the flowing river of fabric are tattered and torn. This comment theorizes a lawsuit that Christo and Jeanne-Claude commence against these aesthetic terrorists, seeking vindication under the Visual Artists Rights Act of 1990 [FN21] (#VARA $). VARA is federal legislation granting the moral rights of attribution *752 and integrity to artists. The couple claims that their work constitutes site-specific art and that removing a portion of it from its context effectively destroyed it, thus harming their honor and reputation as artists. This comment explores the artwork of Christo and Jeanne-Claude to illustrate the extent of moral rights in the United States as codified under VARA. Part I describes Christo and Jeanne-Claude's unique brand of art, highlighting several works and discussing the legal issues that stand in the artists' path with the formulation of each new project. Christo and Jeanne-Claude's artwork is internationally famous and often controversial. Importantly for purposes of this comment, the nature of their work makes it difficult to pigeonhole it into a set category of art. Thus the information provided in Part I suggests that Christo and Jeanne-Claude's art is a useful tool to showcase the shortcomings of VARA as well as the negative consequences that arise when courts are forced to make judgments about what does and does not constitute art. Part II looks backward to outline moral rights legislation from its origins in Europe to its codification in the United States through VARA. The Berne Convention in Europe is discussed as well as the United States' reluctance to accede to this international treaty for the protection of moral rights. Copyright is contrasted with moral rights, and early attitudes toward moral rights in the United States are examined. Part

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39 CUMLR 749 39 Cumb. L. Rev. 749 II then discusses the patchwork of moral rights legislation on the state level prior to federal promulgation of VARA, and VARA's major provisions are analyzed. Part III discusses the sparse case law among the United States district courts and the federal courts of appeal interpreting particular provisions of VARA, decisions that have steadily eroded the rights promised in the act. Section A analyzes what this comment calls the site-specific problem, which is the conflict that arises between an artist's moral rights in his or her site-specific artwork and the owner's interest in maintaining his real property in any way that he sees fit. This conflict is examined from its inception in the minds of legal scholars even before VARA was codified through the cases that popularized it on a national level, to its apparent resolution in the First Circuit's decision three years ago to totally exclude site-specific art from protection under VARA in Phillips v. Pembroke Real Estate Inc. [FN22] Section B assesses the destructive ramifications of the Pembroke Real Estate decision as it applies to Christo and Jeanne-Claude's artwork, and all site-specific art that is not commissioned by or sold to an outside entity. Section C argues that Christo and *753 Jeanne-Claude's work might be characterized as something other than site-specific art so as to achieve protection under VARA. Section D further explores the question of whether judges and legislators are suited to resolve the ancient question: #What is art?$ This part shows that the very purpose of VARA, to protect an artist's moral rights, has been undermined by the lawmakers and courts that have labeled and categorized art to death. Finally, the conclusion of this comment suggests a modest proposal for an amendment to VARA that would expressly include site-specific artwork that is not commissioned by an outside entity as a protected category of art. I. Christo and Jeanne-Claude's Unique Brand of Art: Is It All It's Wrapped Up to Be? Born in Bulgaria in 1935, Christo moved to Paris in 1958 to escape the Communist bloc. [FN23] There he was introduced to the New Realists, a group of artists revolting against abstract painting. [FN24] In Paris he met Jeanne-Claude and began to wrap found-objects in cloth, suggesting the increased importance of the container over the contained and creating a #new kind of abstract, highly enigmatic sculpture.$ [FN25] At his first one-man show in Cologne in 1961, he wrapped a Renault car, a typewriter, a stove, and two pianos. [FN26] Intrigued by the shift the modern art world was making to New York City, Christo and JeanneClaude moved there in 1964. [FN27] Four years later, they wrapped their first building, the Kunsthalle, in Bern, Switzerland. [FN28] The Common Errors page of the artists' web site asserts that #[t]he artist is not Christo, the artists are Christo and Jeanne-Claude.$ [FN29] An effective businesswoman and manager, Jeanne-Claude has handled their finances for decades, while Christo has *754 been known as the artistic genius. [FN30] However, the couple maintains that every aesthetic decision regarding each of their projects is arrived at jointly, and in 1994 they announced publicly that they were henceforth to be credited as a single artist. [FN31] Wary of the loss of artistic control associated with commissions, grants, and donations, the artists finance each of their projects through the sale of Christo's preparatory charcoal and pastel drawings, collages, lithographs, and other early works. [FN32] Many people do not believe that they raise the millions of dollars needed to pay for each project entirely on their own. In fact, prior to the opening of The Gates in

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39 CUMLR 749 39 Cumb. L. Rev. 749 2005, critics warned the public not only that it was not art, but also that it would be a waste of the Central Park Conservancy's funds, not realizing that the artists pay for all projects themselves. [FN33] This detail about their work sets them apart from other so-called site-specific artists who finance their projects through government commissions. In contrast, Christo and Jeanne-Claude do not accept any kind of sponsorship for their projects, [FN34] and they are completely free to visitors. Though merchandise was sold during the exhibition of The Gates, all proceeds went to the Central Park Conservancy or the Nurture New York's Nature alliance. [FN35] With each project comes a new onslaught of opposition: whether it is the public outcry over the environmental harm the artwork might impose, the costs of the increased traffic and commercialism the work might bring to an otherwise rural area, or other aesthetic concerns. [FN36] However, doubters are often converted after they experience Christo and Jeanne-Claude's art, and art critics often end up admiring the work, albeit grudgingly. The following*755 paragraphs briefly describe several of Christo and JeanneClaude's works to demonstrate the importance of their unique brand of non-commissioned, site-specific art. A. Valley Curtain, Rifle, Colorado, 1970-1972 Christo has often talked about the idea of #passage $ or #passing through $ in his art. Referring to the sense of energy that his work creates, he has said that his work entices one to #go beyond the barrier of a fence or curtain, to touch the surface, to see what is underneath or beyond. $ [FN37] His use of fabric enhances the passage theme in that it is #inviting, teasing, [and] provocative.$ [FN38] Christo and JeanneClaude realized their first grand scale expression of this passage theme when on August 10, 1972, in Rifle Gap, Colorado, workers tied down the last of twenty-seven ropes that secured 142,000 square feet of bright orange nylon fabric to its moorings. [FN39] The curtain, roughly the size of the Brooklyn Bridge's main span, [FN40] was suspended between the two ridges of an unusually narrow valley. [FN41] The project enticed Christo and Jeanne-Claude's longtime lawyer, Scott Hodes, to incorporate the couple in order to shield them from liability. [FN42] Hodes noted that to the best of his knowledge, they were the first artists to do business in the corporate form. [FN43] Valley Curtain took twenty-eight months to complete but was displayed for only twenty-eight hours. [FN44] On August 11, a strong gale estimated to be over sixty miles per hour ripped the fabric apart and made it necessary to begin removing the curtain. [FN45] The sudden destruction of the piece had a #sobering effect on most observers,$ [FN46] and local residents who had initially been wary of the project presented Christo and Jeanne-Claude with a key to the city of Rifle and a metal plaque reading, #Presented To Christo And Jeanne-Claude By The Citizens Of Rifle For Their Dedicated Efforts In *756 Conceiving and Achieving !The Valley Curtain." A Pure and Beautiful Tribute to the Imagination of Man.$ [FN47] B. Running Fence, Marin and Sonoma Counties, California, 1972-1976 It is safe to say that Christo and Jeanne-Claude become obsessed with each new project on the horizon. The inspiration behind the Running Fence obsession was thirteen-foot-high metal snow fencing in the hills in Ireland that they had seen #running and hiding behind trees $ as they were driving across the Continental

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39 CUMLR 749 39 Cumb. L. Rev. 749 Divide in 1972. [FN48] Originally planned to be salmon-colored and to be called The Divide, JeanneClaude encouraged Christo to change the name of the piece because #divide $ was an unfriendly word. [FN49] Completed on September 10, 1976, Running Fence stood eighteen feet high and ran for over twenty-four and a half miles east to west from an area north of San Francisco to the Pacific Ocean where it dropped into the water at Bodega Bay. [FN50] The project took forty-two months of collaboration and preparation, and it stood for just fourteen days before it was removed, leaving no remnants of its existence over the rolling hills of Sonoma and Marin counties. [FN51] The work consisted of over two million square feet of heavy white nylon fabric which hung from hooks along a steel cable strung between steel poles, each imbedded one meter into the ground. [FN52] Running Fence crossed the private properties of fifty-nine ranchers and came into being only after permission was gleaned from each ranching family, a 1,450-page environmental impact report was drawn up and approved, and numerous public hearings had occurred. [FN53] Christo said that Running Fence #is the first artwork with an environmental-impact report,$ [FN54] not claiming that it was the first time an artist needed governmental permission to execute an idea but conveying that the report was #an element of the piece, rather than as a means (or hurdle) to its realization.$ [FN55] Running Fence encountered fiercer opposition than any of their previous *757 projects, and Christo and Jeanne-Claude began to develop the idea that the entire process of obtaining permission and support to execute each work was a part of the art itself. Christo and Jeanne-Claude temporarily rented the land from each of the fifty-nine ranch families for $250 and later donated to them the steel poles and cables used in the project. [FN56] An opposition group calling themselves #The Committee to Stop the Running Fence $ gathered strength, and a member of Christo and Jeanne-Claude's team received a bomb threat from this group, claiming that they had placed plastic bombs along the length of the fence that #wouldn't kill a man but that would tear his legs off.$ [FN57] Christo refused to give up on the project, telling Newsweek that it was all just a part of the process. [FN58] Running Fence gained notoriety largely because of what came to be called #Running Fence's Illegal Leap.$ [FN59] Christo and his team decided to complete the installation of the westernmost portion of the fence, along the beach into the Pacific Ocean, after being denied a permit from the California Costal Zone Commission. [FN60] The only time to date that the artists have not complied with the law, in Christo's mind he had merely #challenged the system and was prepared to pay the consequences; his allegiance was to his art.$ [FN61] C. Surrounded Islands, Miami, Florida, 1980-1983 On May 7, 1983, eleven islands in Biscayne Bay off the coast of Miami #blossomed.$ [FN62] Christo and team unfurled the 6.5 million square feet of bright pink woven polypropylene fabric that floated on the surface of the water and extended 200 feet from each island into the bay. [FN63] Christo and JeanneClaude water-tested many fabrics for Surrounded Islands, some whose pink color disappeared after only two days in the sun and some that became saturated with water and sank, before finding the right material. [FN64] Once again, Christo *758 and Jeanne-Claude faced opposition to this project, especially from

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39 CUMLR 749 39 Cumb. L. Rev. 749 environmentalists. The National Wildlife Rescue Team filed suit in federal court to stop the project, and it was awarded the right to monitor the project on a daily basis via a rented boat that Christo and JeanneClaude were instructed to pay for. [FN65] The U.S. Army Corps of Engineers asked Christo and JeanneClaude to make sure that the work did not disturb the manatees who made their home in and around the islands, so a costly experiment was held at Orlando's Seaquarium, where it was reported that the manatees not only #preferred to linger under the fabric but also used its shade to !engage in mating procedures.$" [FN66] During the two-week display period, over 120 monitors observed the work at all hours of the day and night. [FN67] As part of the work's removal, Christo and his team removed over forty tons of garbage that had accumulated on the islands over the years. [FN68] D. The Umbrellas, Japan - USA, 1984-1991 At sunrise on October 9, 1991, workers began opening blue umbrellas in Japan and yellow umbrellas in California, [FN69] signifying the culmination of years of planning and preparation for Christo and JeanneClaude's most ambitious project to date. The team installed 1,340 blue umbrellas in a valley north of Hitachiota, Japan, on the private land of over 450 landowners and public agencies. [FN70] At the same time in California, workers installed 1,760 yellow umbrellas in a valley 60 miles north of Los Angeles on the property of Tejon Ranch and 25 private landowners and governmental agencies. [FN71] Each umbrella stood 19 feet 8 inches high and 28 feet 5 inches in diameter, weighing 448 pounds without its base. [FN72] Aluminum poles and steel bases anchored the umbrellas in place, and they were painted blue and yellow to match the fabric. [FN73] Christo and Jeanne-Claude often labor over decisions about fabric color. Here, blue was chosen for Japan to reflect the vegetation that is supported by water year round, while yellow was chosen *759 for California's dry landscape with its brown hills and golden grasses. [FN74] Tragically, two deaths occurred relating to this project: an unexpected violent wind in California caused an umbrella to come loose from its base, causing a woman to fall and hit her head on a rock, while a Japanese man working on the project was electrocuted from a current flowing through a high-tension wire. [FN75] The project cost over $26 million and stood for 18 days. [FN76] E. Wrapped Reichstag, Berlin, 1971-1995 The wrapping of this public building in Berlin was completed on June 24, 1995, by a crew of over 90 professional climbers and 120 workers. [FN77] In the three months before the wrapping, workers installed the steel structures on the roof and towers of the building that would allow the woven polypropylene fabric with an aluminum surface to gently cascade to the ground. [FN78] The Reichstag has been a symbol of democracy in Germany since it was built in 1894. [FN79] To make this project a reality, Christo made 54 trips to Germany, visited 352 members of the German parliament, and involved 6 presidents of Bundestag, the German parliament. [FN80] Bundestag finally voted for the project after debating for seventy minutes during a session on February 25, 1994. [FN81] Christo and Jeanne-Claude have long been interested in using fabric in their work. Christo has said,

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39 CUMLR 749 39 Cumb. L. Rev. 749 #Fabric exists like our skin, or like the leaf on a tree. The leaves on the tree fall off, and our skin can be broken. All the elements of tension - sometimes involving real fears and serious technical problems - are normal because we are dealing with very fragile but at the same time powerful material. $ [FN82] During the installation of Wrapped Reichstag, the artists said that the silvery fabric held in place by blue ropes revealed the essence of the imposing structure of the building. [FN83] Indeed, the massive structure incased in the silver fabric resulted in a ghostly apparition. *760 F. The Gates, Central Park, New York City, 1979-2005 Christo and Jeanne-Claude's most recent project #bloomed $ on February 12, 2005, when 7,503 freehanging saffron-colored fabric panels were unfurled from 7,503 #gates,$ each standing 16 feet tall and varying in their widths from 5 feet 6 inches wide to 18 feet wide. [FN84] Specifically planned for the winter season, the orange installation stood in stark contrast to the bare black trees in the park. The Gates was installed along twenty-three miles of walkways, and each structure was spaced at twelve foot intervals. [FN85] The project was stalled for decades until Mayor Bloomberg, who was personally fond of the artists, finally signed the forty-three page contract on January 22, 2003. [FN86] The artists claimed, For those who walked through The Gates, following the walkways, the saffron-colored fabric was a golden ceiling creating warm shadows. When seen from the buildings surrounding Central Park, The Gates seemed like a golden river appearing and disappearing through the bare branches of the trees and highlighting the shape of the meandering footpaths. [FN87] The project was named for the various open entrances to Central Park, though no actual gates exist at these entrances. [FN88] The rectangular poles supporting the fabric panels were chosen to reflect the grid pattern of the streets of New York City, while the free-flowing nylon panels which moved in the wind were chosen to reflect the #serpentine design of the walkways $ in the park as well as the #organic shape of the bare branches of the trees.$ [FN89] The project remained in Central Park for sixteen days where millions of visitors experienced the work and team members passed out over one million free fabric samples. [FN90] Removal was completed on March 11, 2005. [FN91] *761 G. Over the River, Project for the Arkansas River, State of Colorado, In Progress Despite their increased fame after The Gates debuted in New York City, Christo and Jeanne-Claude continue to face strong hostility toward their newest project. This proposal to suspend translucent fabric high and clear over a portion of the Arkansas River, for a period of two weeks in the summer of some year in the future, will be their second project in Colorado, as Valley Curtain was the first over thirty years ago. The concerns are the same: some worry about increased traffic to the relatively rural area, others about public safety and the possible harm to the river environment including detriment to fish and birds, some believe that remnants of the project will be left after its removal, and many question the purpose of #embellishing $ the natural landscape. As noted earlier, an opposition group called #Rags over the Arkansas River $ has formed, [FN92] and local papers feature updates and editorials on a daily basis. A blogger from Colorado posted, recalling Valley Curtain:

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39 Cumb. L. Rev. 749 Christo walked away from the project after only minimal cleanup. Most of the metal hardware imbedded in the canyon walls is still there today. Christo's projects are okay in an urban setting, but he certainly has not shown a respect for nature or the environment in his previous attempt to #decorate $ Colorado's already beautiful scenery. [FN93] Other critics hope that a #discerning wind will perform an encore $ during Over the River's exhibition, referencing the windstorm that destroyed Valley Curtain in 1972. [FN94] Despite all this, Christo and Jeanne-Claude continue to try to realize their artistic dreams. When they aren't traveling, they can be found at the same loft on Howard Street in SoHo in New York City that they have occupied for over forty years. [FN95] Christo and Jeanne-Claude's art is monumental, yet ephemeral. Decades of *762 planning and millions of dollars result in a work of art that is on display for a week or two at most, and then it is gone. However, the work continues to exist in the minds of those who experience it, and the landscapes, whether Central Park in February or the rolling hills of southern California, have changed. In addition to making their unique mark on the art world, Christo and Jeanne-Claude's work is a testament to their #inexhaustible skill and patience in the manipulation of officialdom, the imposition of an artist's will on a very public domain. $ [FN96] Yet, as will be seen in the following paragraphs, should Christo and Jeanne-Claude's work be destroyed, the integrity that they possess in their art could be in jeopardy. II. The Evolution of Moral Rights in Europe and Beyond The concept of the droit moral, or moral rights, originated in France during the French Revolution, when ideas of individualism began to take shape. [FN97] This cluster of rights is personal to the holder and stems from the idea that the artist infuses his personality and spirit into his artwork and thus should be protected from those who seek to tamper with it. [FN98] It is important to contrast moral rights with copyright, which is concerned solely with economic protection of one's creation. In fact, the French civil law system views moral rights as #independent from and superior to any pecuniary interest.$ [FN99] Under French law, artists maintain four separate rights: the droit de divulgation, or the right of disclosure, which is the right to determine when and how one's work is to be made public; [FN100] the *763 droit de retrait ou de repentir, or the right to withdraw one's work from publication or to make modifications to it; the droit a la paternite, or the right of authorship; and the droit au respect de l'oeuvre, or the right of integrity. [FN101] The right of authorship or attribution includes the right of an artist to be recognized as the author of his work, the right to prevent his work from being attributed to someone else, and the right to prevent his name from being associated with work he did not create. [FN102] The right of integrity is the moral right most widely known and most frequently protected and allows an artist to prevent any tampering with his work that would harm his reputation or integrity, even if he has transferred his work to another. [FN103] Under French law, the foregoing rights are personal to the artist and not to the work itself; the rights of attribution and integrity, if not the others, survive the author; and these rights are neither transferable nor waivable, at least in theory. [FN104] A. The Berne Convention To facilitate international cooperation regarding the protection of moral rights and copyright,

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39 CUMLR 749 39 Cumb. L. Rev. 749 representatives from ten countries met in Berne, Switzerland in 1886. [FN105] The Berne Convention for the Protection of Literary and Artistic Works was signed, a document that required each nation to give the same protection to copyrights from cooperating nations as it would give to copyrights within its own borders. [FN106] Through revisions that were adopted in Rome in 1928, protection for artists' moral rights was added to the Berne Convention. [FN107] Specifically, Article 6bis states: Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action *764 in relation to, the said work, which would be prejudicial to his honor or reputation. [FN108] These protected rights of attribution and integrity eventually made their way into present day moral rights legislation in the United States. B. Moral Rights in the United States before VARA The United States Congress passed the first copyright act in 1790, with protection conferred by statute to the property interests of the copyright holder who may or may not have been the original author of the work. [FN109] Early copyright law in the United States was based on England's Statute of Anne which attempted to reconcile the interests of publishers, authors, and censors. [FN110] The United States viewed copyright as benefiting society as a whole, while civil-law nations, such as France, felt that copyright benefited the author of the work. [FN111] Because of this difference, courts and legislators in America were reluctant to recognize moral rights. For example, in 1947, the Seventh Circuit denied an artist's right to attribution, [FN112] noting that [t]hese so-called #moral rights[]$ [which] so we are informed, are recognized by the civil law of certain foreign countries [have] not yet received acceptance in the law of the United States We need not stop to inquire whether such a change, if desirable, is a matter for the legislative or judicial branch of the government; in any event, we are not disposed to make any new law in this respect. [FN113] In 1949, the Second Circuit denied an artist's right of integrity. [FN114] In that case, the aggrieved artist claimed that he had #a continued*765 limited proprietary interest in his work after its sale, to the extent reasonably necessary to the protection of his honor and reputation as an artist .$ [FN115] The court, noting that the Berne Convention upheld the doctrine of droit moral, nonetheless held that because the United States was not a signatory to the Berne Convention and because moral rights had not yet found acceptance in the United States, the artist had no continuing right of integrity in his work post-transfer. [FN116] Results such as these forced aggrieved artists to pursue other legal theories, such as breach of contract, [FN117] copyright infringement and violation of the Lanham Act, [FN118] unfair competition, [FN119] and defamation [FN120] to achieve redress when their work was modified or destroyed. In 1979, California enacted the California Art Preservation Act, [FN121] becoming the first state to recognize and protect moral rights. [FN122] In 1984, New York enacted the Artists' Authorship Rights Act, [FN123] in part as a reaction to the highly publicized plight of Frank Stella. Stella was an internationallyknown artist who left several canvases on the landing outside his studio that he intended to discard, and

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39 CUMLR 749 39 Cumb. L. Rev. 749 they were damaged by rain. [FN124] The damaged canvases were stolen from the landing and turned up in a local art gallery several days later. [FN125] In Stella v. Mazoh, [FN126] the artist pursued a stolenproperty theory to prevent the gallery from representing the canvases as his work, a misrepresentation that would damage his reputation as an artist, because New York had yet to codify the moral rights of integrity and attribution at the time of the suit. [FN127] The parties*766 settled out of court, Stella recovered the paintings and destroyed them, and New York enacted a moral rights statute a year later. [FN128] Other states soon followed: Connecticut, [FN129] Massachusetts, [FN130] New Mexico, [FN131] Pennsylvania, [FN132] Louisiana, [FN133] Maine, [FN134] Nevada, [FN135] New Jersey, [FN136] and Rhode Island [FN137] each extended protection of moral rights to artists. Although moral rights had been protected on the state level for nearly ten years, the United States did not accede to the Berne Convention until March 1, 1989, when President Reagan signed the Berne Convention Implementation Act. [FN138] In so doing, the United States committed itself to recognizing, at least in theory, the rights of integrity and attribution embodied in Article 6bis. [FN139] As discussed below, Serra v. United States General Services Administration [FN140] proved to be the first major case after the Berne Convention to address moral rights in the United States. C. The Visual Artists Rights Act of 1990 On December 1, 1990, the Visual Artists Rights Act [FN141] was enacted as part of the 1976 Copyright Act. VARA took effect on June 1, 1991. The Act protects the rights of attribution and integrity for the author [FN142] of a visual work of art [FN143] and prevents one from destroying the work provided that it is one of recognized stature. [FN144] Under the act, the right to attribution means that the artist may claim authorship of his own work and also prevent the use of his name in association with work that he did not create. [FN145] The right of integrity means that the artist may prevent any intentional distortion,*767 mutilation, or modification of his work that #would be prejudicial to his honor or reputation.$ [FN146] The right of integrity has three important exceptions under the act. First, a modification of a work of art that is the #result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification.$ [FN147] Second, a modification of a work of art that is the #result of conservation, or of the public presentation, including lighting and placement, $ is only a destruction of that work if #the modification is caused by gross negligence.$ [FN148] This exception is known as the public presentation exception or the museum exception because the legislative history suggests that a museum curator may determine how to place and present artwork without facing liability for mutilation or destruction under VARA. [FN149] This provision is the focus of this comment as it is the statutory reasoning behind the First Circuit's refusal to allow site-specific art to be protected by the act. [FN150] By totally excluding site-specific art from VARA's protection, the First Circuit effectively precluded artists like Christo and Jeanne-Claude from exercising their rights of integrity and attribution. Another important exception is found in § 113(d) of the Copyright Act and deals with works of art installed in buildings. This provision states that an artist who creates a work of art which is to be installed in a building does not possess the right to prevent the modification or destruction of the art found in § 106(A)(2) and (3) if he consented to the art's installation before the effective date of VARA or if he and the

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39 CUMLR 749 39 Cumb. L. Rev. 749 owner of the building both signed a written instrument that specified that the installation of the art may subject it to modification or destruction by means of its removal from the building. [FN151] This provision also calls for the owner of the building to make a good faith and diligent attempt to notify the artist before removing his or her work from the building. [FN152] This building exception is a narrow one and obviously does not apply to Christo and Jeanne-Claude's site-specific art, or to any art that is not installed within a building. In addition to these three exceptions, other provisions maintain that the rights of attribution and integrity do not apply to any *768 reproductions or depictions of a work of art, [FN153] and any reproductions or depictions are not considered modifications or mutilations. [FN154] Further, the artist's moral rights are protected for his lifetime only, [FN155] and he may waive these rights but not transfer them. [FN156] VARA preempts both state statute and common law in terms of the rights that it provides. [FN157] Under the act, a #work of visual art $ is a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author or a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. [FN158] The definition of a work of visual art excludes any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; [or] any work made for hire. [FN159] A work made for hire is, inter alia, #a work prepared by an employee within the scope of his or her employment.$ [FN160] Thus the plain language of VARA attempts to classify exactly what does and does not constitute a work of visual art for the purposes of awarding moral rights to artists. III. The Federal Courts Interpret VARA: #Not every artist has rights under VARA, and not everything called !art " is protected by such rights $ [FN161] While the case law interpreting VARA has not yet reached the Supreme Court, litigation over particular provisions has served to decrease the scope of the act considerably. In particular, decisions have chipped away at the categories of art that are included under the definition of visual art. This trend suggests that artists such as *769 Christo and Jeanne-Claude may not receive protection under current interpretations of VARA. For example, in an early case, the Northern District of Illinois held that puppets, costumes, and sets are not included within the definition of visual art under VARA, refusing to read into the statute what Congress had expressly left out. [FN162] In 2003, a dragon design embroidered on a pants leg by a fashion designer was excluded from the definition of visual art by the Southern District of New York because it likewise did not expressly fit into the definition of visual art under VARA. [FN163] In 1995, the Second Circuit held in Carter v. Hemsley-Spear, Inc. [FN164] that applied art could in some cases warrant

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39 CUMLR 749 39 Cumb. L. Rev. 749 protection under VARA as a type of visual art, [FN165] but found that a #walk-through sculpture $ [FN166] occupying most of the space in a building's lobby was not protected under the Act because it was a #workfor-hire.$ [FN167] A clay statue sculpted in *770 preparation for a bronze statue was held to be a protected work of visual art because, in the art world, models are often viewed as works of art in their own right, [FN168] but precursory drawings for the creation of a trophy were excluded from the act by the Third Circuit in a later case [FN169] due to the fact that the definition of #visual art $ expressly excludes #models $ and #technical drawings.$ [FN170] In 2003, the Second Circuit held in Pollara v. Seymour [FN171] that an artist's hand-painted banner was not a work of visual art under the act in part because it was created to draw attention to a political campaign and was paid for and commissioned by a political advocacy *771 organization. [FN172] However, murals, as a sub-category of paintings, were held to be works of visual art and thus protected under the act in another case. [FN173] Also in 2005, photographic prints given to an artist by a photographer to be used as studies for a painting that the artist intended to create were excluded from protection under the act because they were not photographs created for exhibition. [FN174] The case law [FN175] suggests that courts have looked to traditionally accepted notions in the art world to aid them in determining which categories of art deserve protection under VARA. The trend appears to be, however, to err on the side of caution and exclude particular works from protection unless the plain language of the statute unequivocally includes them. This trend manifested itself, importantly for the purposes of this comment, in 2006, when the First Circuit handed down the treacherous decision in Phillips v. Pembroke Real Estate, Inc. to completely exclude site-specific art from protection under VARA. [FN176] A. The Site-Specific Problem Develops Pembroke Real Estate came at the end of a long line of cases involving the destruction of commissioned site-specific artwork, with *772 no relief afforded to the artist. In 1980, the New York art community was outraged when the Bank of Tokyo Trust Company cut up and removed to storage a massive sculpture that it had commissioned for installation in its lobby on Wall Street from renowned artist Isamu Noguchi. [FN177] Similarly, the Samoset Resort in Rockport, Maine, dismantled, by way of a chain saw, a sculpture it had commissioned five years earlier from artist Bernard Langlais for the resort's lobby. [FN178] Langlais's widow was not informed in advance of the demolition, and the pieces of the sculpture were left abandoned for months at the rear of the resort. [FN179] Also in New York City, workers smashed two Art Deco sculptures that were embedded in the facade of the Bonwit Teller building during the razing of the building to make way for the Trump Tower. [FN180] The Metropolitan Museum of Art had expressed interest in the sculptures and was very surprised when they were destroyed with no notice. [FN181] In each of the preceding situations, the real property rights of the owners of buildings were valued more highly than the rights that the artists possessed in the integrity of their work. Under traditional property law, the owners of property enjoy the right to destroy that property at will, [FN182] and the artists who sold their work to others were left with no relief. This conflict between site-specific art and moral rights laws in the United States became highly publicized when the Second Circuit allowed the General Services Administration to remove renowned artist Richard Serra's controversial sculpture, Tilted Arc, from Federal Plaza in Manhattan. [FN183] In 1979, the GSA commissioned Serra to create the large outdoor sculpture made of Cor-Ten steel pursuant to GSA's art-in-architecture program. [FN184] The contract signed by all parties involved provided no restrictions on the government's use of the sculpture after it was purchased from Serra. [FN185] Once Tilted Arc was installed in 1981, public criticism of the work quickly intensified for several years until

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39 CUMLR 749 39 Cumb. L. Rev. 749 GSA agreed to hold a public hearing in March 1985 on the sculpture's possible *773 relocation. [FN186] When GSA determined that the sculpture should be removed and relocated in response to public dissatisfaction with the work, Serra sued, alleging that his work's removal violated his rights under the Free Speech Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, federal trademark and copyright laws, and state moral rights laws. [FN187] The United States District Court for the Southern District of New York held that an artist has no cause of action when the federal government removes his commissioned site-specific artwork from its context, [FN188] and the Second Circuit agreed. [FN189] The Second Circuit held that Serra relinquished his free speech rights in his sculpture when he sold it to the federal government and that the decision to relocate the sculpture did not violate due process. [FN190] The court noted, #Notwithstanding that the sculpture is sitespecific and may lose its artistic value if relocated, Serra is free to express his artistic and political views through the press and through other means that do not entail obstructing the Plaza. $ [FN191] Moral rights were not recognized in federal American law at the time of the suit, but if VARA had existed, perhaps the court would have been more receptive to the idea that removing site-specific artwork from its context effectively destroys it and thus violates the artist's right of integrity. Though Serra could assert only First Amendment free speech rights in his work at the time, the court took note of the inherent conflict between an artist's rights and traditional real property laws, stating that #the Government's action in this case is limited to an exercise of discretion with respect to the display of its own property.$ [FN192] The enactment of VARA exacerbated this conflict insofar as it provided moral rights to artists but did not address the site-specific problem. The conflict came to a head in Pembroke Real Estate, as the *774 First Circuit expressed concern that extending protection under VARA to site-specific art would #dramatically affect real property interests and laws.$ [FN193] In 1999, Pembroke Real Estate commissioned David Phillips, a nationally-known sculptor, to create several pieces of sculpture and stonework for display in Eastport Park in South Boston. [FN194] Two years later, when Pembroke decided to redesign the park and called for the removal of the sculpture, Phillips filed suit in federal district court [FN195] seeking relief under both VARA and the Massachusetts Art Preservation Act. [FN196] Phillips claimed that his work was integrated art and site-specific art and that removing it from the park would effectively destroy it. [FN197] The district court ruled that VARA recognized integrated and site-specific art, but that Phillips could not prevent Pembroke Real Estate from removing his work according to VARA's public presentation exception. [FN198] The public presentation exception, as discussed earlier, states that any modification of a work of art that 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.$ [FN199] Congress intended for this provision to allow #galleries and museums [to] continue to have normal discretion to light, frame, and place works of art,$ [FN200] but noted that conduct that goes beyond presentation to #physical modification $ is a violation of VARA. [FN201] Congress also stated, #Generally,*775 the removal of a work from a specific location comes within the exclusion because the location is a matter of presentation, unless the work cannot be removed without causing the kinds of modifications described in 106A(a)(3). $ [FN202] Here Congress was referring to the modifications that would be prejudicial to the artist's honor or reputation. [FN203] Thus one who removes a work of art from a specific location may be protected under the public presentation exception unless the removal results in a destruction that would harm the artist's reputation. This reading of

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39 CUMLR 749 39 Cumb. L. Rev. 749 the public presentation exception prompted the district court to rule that Pembroke could remove Phillips's work pursuant to the exception as long as it did not #alter, modify, or destroy the !works of visual art " as [the court] [had] defined them.$ [FN204] On appeal to the First Circuit, the court rejected the idea that VARA protected integrated or site-specific art but that Pembroke could remove the art in question under VARA's public presentation exception. [FN205] Instead, the First Circuit found that VARA did not protect site-specific art at all. [FN206] The court defined integrated art as that which 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, $ and site-specific art as a work where #one of the component physical objects is the location of the art. $ [FN207] The court noted that #[e]ssentially, 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.$ [FN208] The First Circuit found error with the district court's willingness to first protect site-specific art under the language of VARA but then exclude the same category of art under the public presentation exception of the act. According to the First Circuit, #[e]ither VARA recognizes site-specific art and protects it, or it does not recognize site-specific art at all. $ [FN209] Phillips had argued that the public presentation exception applies to so-called #plop art $ or art that is subject to temporary and minor changes in lighting and placement, but does not *776 apply to site-specific art because to alter or modify this art is to destroy it. However, the First Circuit rejected this #dual regime $ reading of the statute and reasoned that interpreting VARA as such would read more into the plain language of the statute than is actually there. [FN210] There was more at stake in this case, however, than mere statutory interpretation. The court could not hide its distaste for a holding that would elevate the moral rights of artists over the real property rights of the commissioners of the work. In the court's view, #[o]nce 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.$ [FN211] Such a result would allow artists to perpetually bind property owners' use and enjoyment of their property, and this concern is arguably a legitimate one. However, not all site-specific art raises this issue. B. Enter Christo and Jeanne-Claude's Site-Specific, Non-Commissioned Art Christo has said of his work, #These projects are absolutely irrational. Nobody needs a Valley Curtain or a Running Fence. They do not exist because the president of a republic would like to have them, or some mayor or representative of the National Endowment for the Arts. They exist because we want them.$ [FN212] The First Circuit's ruling in Pembroke Real Estate leaves open the question of whether sitespecific art that is not commissioned by the entity that seeks to destroy it would nonetheless warrant protection under VARA. In other words, would artists such as Christo and Jeanne-Claude who #own $ their art insofar as it was not commissioned, still be protected, despite the First Circuit's exclusion of sitespecific art altogether from VARA? The protection of this kind of site-specific art, such as Over the River, certainly does not raise the same issues between moral rights of artists and traditional property rights of owners as commissioned, site-specific art raises. There is hardly an inkling in Pembroke Real Estate as to whether an exception could be carved out for

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39 CUMLR 749 39 Cumb. L. Rev. 749 site-specific art that is not commissioned by an outside entity. The First Circuit at least expressed respect and recognition for site-specific art, in quoting the words of Richard Barretto, one of Phillips's experts and the Executive Director of the Urban Arts Institute of the Massachusetts College of Art: #[T]oday the concept of !site-specificity " is the !rallying *777 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. $ [FN213] However, the opinion concludes with the firm statement that the plain language of VARA does not protect site-specific art. [FN214] In so holding, the court drastically undermined the very purpose of VARA, which is to protect the moral rights of visual artists, because many modern artists' work is characterized as sitespecific. C. Classifying Christo and Jeanne-Claude's Art To determine whether Over the River would warrant protection under VARA, it must be classified. Surely it is site-specific art, because the category is a broad one in the world of modern art. Gaining importance in the sixties, site-specific art #elevate[s], in varying degrees, the importance of the relationship between context and object $ [FN215] and encompasses all art that strives to move away from the sterile, climate-controlled, white walls of the museum space. Art critics, members of the media, and even legal scholars [FN216] have labeled Christo and Jeanne-Claude's work #site-specific,$ but the artists themselves have never done so publicly. Instead, they claim to create environmental art. [FN217] They refute claims that they generate conceptual art because their ideas are actually realized, and they also deny that they create land art because they work in urban environments just as often as in rural settings, and their work's context is space already created and being used by people. [FN218] In criticizing *778 the fact that Christo and Jeanne-Claude must explain and promote the ideas for their projects at countless public forums, some have called their art minimal. In these critics' eyes, great art should speak for itself; the more minimal the work, the more maximal the explanation. [FN219] Christo has rejected this characterization and said that his work is #simple, direct, intimate [and above all] public.$ [FN220] Despite asserting what kinds of art they do not create, Christo and Jeanne-Claude claim to dislike labels. [FN221] Unfortunately, labeling art is apparently necessary to determine whether it is deserving of VARA's protections. If labeling is necessary, perhaps Christo's lawyers could hire experts who would characterize Over the River as a different kind of art. If public art is any art that occupies a public space or that has been planned with the intention of being sighted by the public in the public domain, [FN222] then Over the River must be public art. If environmental art encompasses all art that uses natural materials, raises awareness of the fragility of nature, investigates natural phenomena, or that does not contribute to environmental degradation, [FN223] then Over the River might indeed be environmental art, as Christo and JeanneClaude claim. Unfortunately for the artists, environmental art and site-specific art are often used interchangeably; art that implicates the environment can hardly be separated from its environmental context without destroying it. Ironically, the vast majority of people who experience works such as The Umbrellas and Running Fence do so through after-the-fact documentation of the installations in the museum setting. Photographs and collages bring the environmental pieces back into the sterile museum space. Perhaps Christo's experts could label Over the River as temporary art, though the term does not necessarily stand alone as a genre in the art world. However, the fleeting nature of Christo and Jeanne-

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39 CUMLR 749 39 Cumb. L. Rev. 749 Claude's art is arguably its most defining characteristic, especially when one considers the amount of time, money, and effort that goes into a display period of two weeks at most. According to the artists' web site, their works #temporarily use one part of the *779 environment [to allow viewers to] see and perceive the whole environment with new eyes and a new consciousness.$ [FN224] Indeed, works such as The Gates and Wrapped Reichstag permanently altered the landscape, at least in the minds of those who experienced the work. Additionally, art critics have even deemed Christo and Jeanne-Claude's work performance art insofar as the entire process is part of the work. [FN225] Grace Gluecke, noted New York Times art critic, wrote, With Christo and Jeanne-Claude, the conceptual process - the technical problems, the political arm twisting, the fund-raising, the public relations-maneuvering and the documentation relating to their projects and, of course, the power play involved in achieving them - is as much a part of their art as the visible, sometimes beautiful but always temporary, end product. [FN226] To be sure, Christo videotapes most public hearings and includes in the official book published in conjunction with each work of art all contracts, environmental impact statements, letters to officials, and other legal documents, as well as countless photographs from meetings and public hearings. [FN227] At a public hearing seeking approval for Running Fence, Christo said of the process, #The work is not only the fabric, the steel poles, and the fence; the art project is right now, here. Everybody here is part of my work.$ [FN228] D. Legislators and Judges Should Not Label Art So it seems that Christo and Jeanne-Claude's work might be labeled public art, environmental art, sitespecific art, temporary art, or even performance art. [FN229] Depending on its label, Over the *780 River may or may not be awarded protection under VARA if it were to be destroyed or modified. It is thus quite important to determine the type of evidence courts use when they classify art pursuant to VARA. Do they come to conclusions from art criticism or from the inclinations of individual artists? Are legislators and judges even qualified to evaluate art, and are they very good at it? As noted before, VARA defines visual art as paintings, drawings, prints, sculpture, and photography for exhibition only, as long as these exist in limited editions. [FN230] This definition is particularly narrower than the description of #pictorial, graphic, and sculptural works $ in the Copyright Act. [FN231] Through VARA, Congress defined art by simply listing the art forms that are traditionally included under the definition. [FN232] During the hearings regarding the proposal of VARA before the Committee on the Judiciary, Representative Edward Markey testified: #I would like to stress that we have gone to extreme lengths to very narrowly define the works of art that will be covered [T]his legislation covers only a very select group of artists.$ [FN233] In fact, VARA's scope is much narrower than the Berne Convention's protection of moral rights which extends to all literary and artistic works. [FN234] Thus it appears that even one of VARA's most adamant supporters knew to move cautiously when it came to drafting legislation that had anything to do with evaluating art. However, the House Report does state that

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39 CUMLR 749 39 Cumb. L. Rev. 749 The courts should 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 visual art]. Artists may work in a variety of media, and use any number*781 of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used. [FN235] But the phrase #generally accepted standards of the artistic community $ appears to have little meaning when today's artists struggle to defy common sense and tradition. Generally accepted standards for what constitutes art no longer exist in the modern art world, where controversial pieces such as Andres Serrano's Piss Christ [FN236] and Chris Ofili's Holy Virgin Mary [FN237] challenge traditional notions and outrage many people along the way. The New Yorker has described The Gates as #art, because what else could it be? Art used to mean paintings and statues. Now it means anything human-made that is unclassifiable otherwise. This loss of a commonsense definition is a big art-critical problem .$ [FN238] If the debate asking #What is art?$ has been going on since early man depicted bison on cave walls, and art critics today still struggle to place Christo and Jeanne-Claude's art within a particular genre, how then are courts to do the same in determining whether these deserving artists and others like them will be protected under VARA? The following statement penned by Justice Holmes in an early copyright case is often acknowledged as the definitive pronouncement on judicial restraint in this area: #It would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.$ [FN239] But through VARA, legislators attempted to define which artists will be awarded the moral rights of integrity and attribution based on the kinds of art they create, and courts have further confused the issue by interpreting VARA's protections so narrowly as to exclude an entire category of art which happens to be one of the most prevalent genres in the modern art world. *782 Author Christine Haight Farley observed that courts must often attempt to answer the question, #What is art?$ [FN240] Farley discussed the difficulty of doing this and noted that art and law belong in #separate cognitive and intellectual spheres,$ that art is subjective while law is objective, and that #law is about precedent while art is about the evolution of ideas.$ [FN241] Indeed, judges strive to be neutral and objective in their rulings, but judging art implicates one's particular tastes, [FN242] an inherently subjective realm. Moreover, the law that law students are taught attempts to clarify rights, remedies, and rules extracted from prior precedent to apply to future factual scenarios; conversely, the modern art movement seeks to overturn, or to at least muddle, the aesthetic rules that have come before. In VARA cases, courts do the best they can when faced with the question, #What is art?$ Experts from the art world are often used. [FN243] Judges look first to the plain language of VARA, to the legislative history, and then to the admittedly sparse case law. However, Farley suggested that judges more often than not avoid answering the question, #What is art?$ [FN244] Tools of avoidance include (i) substituting a different issue for analysis in place of the issue of whether a particular object is art; (ii) #speak[ing] exclusively about the weight of evidence rather than explain[ing] how the evidence proves the object's art status;$ (iii) analyzing the issue but attributing their analysis to another concern and #deny[ing] that they are addressing the !What is art?" problem at all;$ and (iv) deciding whether or not something is art without providing any reasoning for their conclusion. [FN245] The court in Pembroke Real Estate utilized the fourth tool of avoidance in completely excluding site-specific art from protection under VARA, without

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39 CUMLR 749 39 Cumb. L. Rev. 749 giving meaningful reasons why. Other courts evaluating art in regards to VARA have used similar methods. The court in Maharishi, when determining whether a dragon design will be protected under VARA, reached a conclusory holding with no analysis: [VARA] is available only to #author[s] of a work of visual art $ The dragon images at issue here plainly do not qualify as #work[s] of visual art $ under the statute. See 17 U.S.C. § 101 (defining #work of visual art,$ in relevant part as #a painting, *783 drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author .$). [FN246] Further, the court in Pollara, in evaluating a banner bearing a political message, likewise avoided the larger question of #What is art?$ in stating: We steer clear of an interpretation of VARA that would require courts to assess either the worth of a purported work of visual art, or the worth of the purpose for which the work was created. Congress chose to protect in VARA only a narrow subset of the many different forms and types of what can be called art, and expressly left unprotected works created for the primary purpose of promoting or advertising. Having concluded that the banner is such a work, our task is done. [FN247] But a court's task is not truly done when it excludes a category of art from protection under VARA. One might argue that judges interpreting VARA claims are not being asked to unravel the philosophical question, #What is art?$ but are simply deciding whether a particular work of art is a #work of visual art $ for the purposes of VARA. Indeed, these are two different inquiries, but resolving #What is art?$ in terms of VARA necessitates a determination of #What is art?$ in a larger sense, because VARA is the only means that artists have in the United States to achieve the moral rights of integrity and attribution related to their work. The continued existence of these rights is dependent on the answer to this universal question. Taking into account the problems that have and will continue to arise when lawmakers and courts attempt to classify art, the scope of this comment is limited to raising awareness of the problem presented by non-commissioned, site-specific art in the wake of the First Circuit's exclusion of site-specific art altogether from VARA's protection. This exclusion, however, stemmed from a court purporting to judge a particular genre of art and to reconcile its value with the value society places on traditional property laws. This exclusion would surely affect Christo and Jeanne-Claude if Over the River were destroyed. *784 Conclusion: A Modest Proposal to Amend VARA to Extend Protection to Non-Commissioned, SiteSpecific Artwork The language of VARA, although intended to be narrowly drafted and quite explicit, has spawned unpredictable outcomes in the federal courts. If Christo and Jeanne-Claude's art is destroyed, Pembroke Real Estate suggests that they must characterize their work as something other than site-specific art in order to avail themselves of VARA's protections. Perhaps through a characterization of their work as public art, temporary art, environmental art, or process art, Christo and Jeanne-Claude could distinguish their work from commissioned, site-specific work such as that in Pembroke Real Estate.

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39 CUMLR 749

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39 Cumb. L. Rev. 749 An amendment to VARA extending protection to non-commissioned, site-specific art would also solve their problem. The public presentation exception, § 106(A)(c)(2), might be altered to read: 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 or unless it arises from the destruction, distortion, mutilation or other modification of a work of site-specific art that has not been commissioned by or sold to another person, governmental entity, or business of any kind. As the statute and case law now stand, fracturing the definition of visual art to exclude site-specific art frustrates the purposes of VARA and the rights that it was enacted to provide artists in the first place. In the future, another federal circuit court of appeal or the United States Supreme Court may rule on this issue, but in the meantime, site-specific artists such as Christo and Jeanne-Claude may have less incentive to create art if they are unable to retain moral rights in their work. [FN1]. J.D., Cumberland School of Law; B.A., Birmingham-Southern College. For excellent feedback on this paper, I would like to thank Professor Elizabeth Chamblee Burch. [FN2]. Jok Church, Common Errors: Christo and Jeanne-Claude Respond, http:// www.christojeanneclaude.net/error.shtml (last visited Apr. 21, 2009) [hereinafter Church, Common Errors]. [FN3]. BURT CHERNOW, CHRISTO AND JEANNE-CLAUDE: AN AUTHORIZED BIOGRAPHY 246 (2000). San Fransisco art critic Allan Temko called Christo the #Evel Knievel of modern art.$ Id. [FN4]. Id. at 240. Bernard Kroeber, an artist from San Francisco, said, #This guy in the last three months has had more publicity on a project that has not yet been done than most Bay Area artists have had collectively in the past five years,$ at a public hearing where Christo and Jeanne-Claude proposed their project Running Fence. Id. [FN5]. See Tangerine Dream, PEOPLE, Feb. 28, http://www.people.com/people/archive/article/0,,20146986,00.html.

2005,

at

144,

available

at

[FN6]. Id. [FN7]. Sharon Edelson, Opening the Gates to a Retail Rush, WWD, Feb. 17, 2005, at 9, available at http:// www.accessmylibrary.com/coms2/summary_0286-18812826_ITM. [FN8]. Id.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN9]. The Late Show with David Letterman (CBS television broadcast Mar. 4, 2005), available at http://www.youtube.com/watch?v=xpz4v6_EZ6M. [FN10]. See Posting of Hodag71 to http://www.gazette.com/articles/river_ 32313___article.html/project_colorado.html (Jan. 24, 2008, 12:08 CST) [hereinafter Posting of Hodag71]. [FN11]. John Garvey, Christo's !Gates," COMMONWEAL, Mar. 11, 2005, at 7. [FN12]. See, e.g., Sarah Boxer, With $3.50 and a Dream, the !Anti-Christo " is Born, N.Y. TIMES, Feb. 19, 2005, at B11, available at http:// query.nytimes.com/gst/fullpage.html? res=9F05EEDB113AF93AA25751C0A9639C8B63; The Somerville Gates, http://www.not-rocketscience.com/gates.htm (last visited Apr. 21, 2009). [FN13]. Jonathan Rosen, Odd Birds of a Feather, N.Y. TIMES, Mar. 13, 2005, § 14, at 3, available at http:// query.nytimes.com/gst/fullpage.html? res=9E07E3DD143CF930A25750C0A9639C8B63&sec=&spon=&pagewanted=all. [FN14]. Jok Church, Over the River Project for the Arkansas River, State of Colorado, In Progress, http://www.christojeanneclaude.net/otr.shtml (last visited Apr. 21, 2009) [hereinafter Church, Over the River]. [FN15]. Id. [FN16]. Over the River Art Project Proposal Out, COLORADO SPRINGS GAZETTE, Feb. 2, 2008, http:// www.gazette.com/articles/proposal_32665___ article.html/blm_river.html. [FN17]. Id. [FN18]. Church, Over the River, supra note 14. [FN19]. This proposition might not be so far fetched. During the summer of 1976, when Christo and Jeanne-Claude were preparing for the exhibition of their project Running Fence in Sonoma and Marin Counties in California, opponents of their work vandalized several trucks used to transport materials. CHERNOW, supra note 3, at 253. Christo and Jeanne-Claude called the vandals #aesthetic terrorists.$ Id. They were never found, but the artists realized that they must take more stringent precautions to protect their worksites from public opposition to their projects. Id. [FN20]. See Rags Over the Arkansas River Website, http:// www.roarcolorado.org (last visited Apr. 21,

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39 CUMLR 749 39 Cumb. L. Rev. 749 2009). [FN21]. 17 U.S.C. § 106A (2006). [FN22]. Phillips v. Pembroke Real Estate Inc., 459 F.3d 128 (1st Cir. 2006). [FN23]. Amei Wallach, Christo Does Central Park, SMITHSONIAN, Feb. 2005, at 84, available at http://www.smithsonianmag.com/arts-culture/christo.html? c=y&page=1. [FN24]. H.H. ARNASON, HISTORY OF MODERN ART 509 (Peter Kalb ed., 5th ed. 2003) (1968). New Realism was founded in 1960 in the apartment of Yves Klein by the French art critic Pierre Restany. Id. Members of the group included Klein, Martial Raysse, Arman, Jean Tinguely, and Daniel Spoerri. Id. The movement shared some of the aims of the #pop art $ movement such as a desire to revolt against abstraction in painting, but the European New Realists were less focused on the #processes and imagery of commercial media $ than pop artists were. Id. [FN25]. Id. at 513. [FN26]. Wallach, supra note 23, at 84. [FN27]. Id. [FN28]. Id. [FN29]. Church, Common Errors, supra note 2. [FN30]. CHERNOW, supra note 3, at 196. [FN31]. Id. [FN32]. Church, Common Errors, supra note 2. [FN33]. Calvin Tomkins, The Gates to the City: Onward and Upward with the Arts, NEW YORKER, Mar. 29, 2004, at 76.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN34]. Id. [FN35]. Id. When the Metropolitan Museum of Art approached Jeanne-Claude with the idea of selling The Gates silk scarves and tote bags during the exhibition of the work in Central Park, she reluctantly agreed, as long as a disclaimer was sewn into the fabric of the products that said that she and Christo received no money from the sales. Id. Jeanne-Claude worried that people would see the bags and think, #Oh, that's how they make their money.$ Id. [FN36]. For a brief discussion of the challenges that Christo and Jeanne-Claude have faced in gaining permits to create their art, see Avi Brisman, The Aesthetics of Wind Energy Systems, 13 N.Y.U. EVNTL. L.J. 1, 100-21 (2005) (suggesting that we look to art to guide us in our aesthetic assessment of wind turbines and that if we accept and admire Christo's works then we should apply a similar aesthetic to our appraisal of wind farms). [FN37]. CHERNOW, supra note 3, at 200. [FN38]. Id. at 201. [FN39]. Jok Church, Valley Curtain, Rifle, Colorado 1970-1972, http:// www.christojeanneclaude.net/vc.shtml (last visited Apr. 21, 2009) [hereinafter Church, Valley Curtain]. [FN40]. CHERNOW, supra note 3, at 206. [FN41]. Church, Valley Curtain, supra note 39. [FN42]. CHERNOW, supra note 3, at 202. [FN43]. Id. [FN44]. Church, Valley Curtain, supra note 39. [FN45]. Id. [FN46]. CHERNOW, supra note 3, at 221. [FN47]. Id.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN48]. Id. at 224. [FN49]. Id. [FN50]. Jok Church, Running Fence Sonoma and Marin Counties, California, 1972-1976, http://www.christojeanneclaude.net/rf.shtml (last visited Feb. 18, 2009) [hereinafter Church, Running Fence]. [FN51]. Id. [FN52]. Id. [FN53]. Id. [FN54]. CHERNOW, supra note 3, at 244. [FN55]. Brisman, supra note 36, at 115. [FN56]. Church, Running Fence, supra note 50; CHERNOW, supra note 3, at 232. [FN57]. CHERNOW, supra note 3, at 253. [FN58]. Id. (citing Douglas David, Esthetic Terrorism, NEWSWEEK, Aug. 9, 1976, at 78). [FN59]. CHERNOW, supra note 3, at 262. [FN60]. Id. at 256; see Running Fence Corp. v. Superior Court of Sonoma County, 124 Cal. Rptr. 339 (Cal. Ct. App. 1975) (holding that the Superior Court exceeded its jurisdiction in issuing a preemptory writ of mandate directing the county board of supervisors to set aside resolutions granting Christo a permit). [FN61]. CHERNOW, supra note 3, at 261. [FN62]. Id. at 309.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN63]. Jok Church, Surrounded Islands, Miami, Florida, 1980 - 1983, http:// www.christojeanneclaude.net/si.shtml (last visited Apr. 21, 2009) [hereinafter Church, Surrounded Islands]. [FN64]. CHERNOW, supra note 3, at 306-07. [FN65]. Id. at 308. [FN66]. Id. at 307. [FN67]. Church, Surrounded Islands, supra note 63. [FN68]. CHERNOW, supra note 3, at 307. [FN69]. Jok Church, The Umbrellas Japan U.S.A. 1984-1991, http:// www.christojeanneclaude.net/um.shtml (last visited Apr. 21, 2009) [hereinafter Church, The Umbrellas]. [FN70]. Id. [FN71]. Id. [FN72]. Id. [FN73]. Id. [FN74]. Id. [FN75]. Tomkins, supra note 33, at 76. [FN76]. Church, The Umbrellas, supra note 69. [FN77]. Jok Church, Wrapped Reichstag, Berlin 1971-1995, http:// www.christojeanneclaude.net/wr.shtml (last visited Apr. 21, 2009) [hereinafter Church, Wrapped Reichstag]. [FN78]. Id.

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39 Cumb. L. Rev. 749 [FN79]. Id. [FN80]. Id. [FN81]. Id. [FN82]. CHERNOW, supra note 3, at 234-35. [FN83]. Church, Wrapped Reichstag, supra note 77. [FN84]. Jok Church, The Gates Central Park New York City 1979-2005, www.christojeanneclaude.net/tg.shtml (last visited Apr. 21, 2009) [hereinafter Church, The Gates].

http://

[FN85]. Id. [FN86]. Id. [FN87]. Id. [FN88]. Id. [FN89]. Id. [FN90]. Church, The Gates, supra note 84. [FN91]. Id. [FN92]. See Debbie Bell, !Over the River " Proposal Now Available Online, CANON CITY DAILY RECORD, Feb. 2, 2008, at A1, available at http:// www.canoncitydailyrecord.com/default.aspx? tabid=71&pDesc=2473,1,1. [FN93]. Posting of Hodag71, supra note 10 (#Over The River will take its toll on wildlife in the Canyon. Eagles, hawks and other birds will be negatively impacted. Bighorn sheep, deer, and other animals will be severely stressed not just during the time it is open to the public, but during the several months when construction crews are tearing up the hillsides. When it is all over, our children's children will still be able

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39 CUMLR 749 39 Cumb. L. Rev. 749 to see his junk that is left hanging from the canyon walls.$). [FN94]. Charlie Meyers, Art Project Wields Big Brush of Controversy, DENVER POST, Feb. 15, 2006, at D14, available at http:// www.overtheriver.org/2006/02/art_project_wie.html. [FN95]. CHERNOW, supra note 3, at 351. [FN96]. Grace Glueck, Art Review; Christo's Feat: 25 Years' Work for 16 Days, N.Y. TIMES, Apr. 9, 2004, at B31, available at http:// query.nytimes.com/gst/fullpage.html? res=9B04EEDA1538F93AA35757C0A9629C8B63. [FN97]. See, e.g., RALPH E. LERNER & JUDITH BRESLER, ART LAW: THE GUIDE FOR COLLECTORS, INVESTORS, DEALERS AND ARTISTS 944 (3d ed. 2005); Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists' Rights in France and the United States, 28 BULL. COPYRIGHT SOC'Y 1 (1980). [FN98]. LERNER & BRESLER, supra note 97, at 943. [FN99]. Francesca Garson, Note, Before That Artist Came Along, It was Just a Bridge: The Visual Artists Rights Act & The Removal of Site-Specific Artwork, 11 CORNELL J.L. & PUB. POL'Y 203, 207 (2001). [FN100]. LERNER & BRESLER, supra note 97, at 945. The case of Whistler v. Eden illustrates the right of disclosure. Id. Famous artist James Abbot McNeill Whistler was commissioned by Lord Eden to paint his wife's portrait. Id. Dissatisfied with the painting, Whistler first painted out Lady Eden's head and painted in another head, and then refused to deliver the portrait. Id. The Paris Court of Appeals excused Whistler from delivering the portrait despite his contract with Lord Eden, suggesting that an artist has an absolute right to decide when to disclose his work to the public. Id. [FN101]. Id. at 945-47. [FN102]. LERNER & BRESLER, supra note 97, at 946. [FN103]. Id. at 1255. [FN104]. Id. at 1255-56. The Berne Convention, discussed infra, does not expressly prohibit waivability or assignability, so the various nations involved have been able to create their own laws regarding waiver and transfer of moral rights. Id. at 1256.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN105]. 18 AM. JUR. 2D Copyright and Literary Property § 202 (2008). [FN106]. Id. [FN107]. Wenjie Li, Comment, Standing to Sue in Another's Shoes: Can an Assignee of an Accrued Copyright Infringement Claim with No Other Interest in the Copyright Itself Sue for the Infringement?, 28 PACE L. REV. 73, 80 (2007). [FN108]. Berne Convention for the Protection of Literary and Artistic Works art. 6bis(b), July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221. [FN109]. LERNER & BRESLER, supra note 97, at 1258. [FN110]. Id. [FN111]. Robert J. Sherman, Note, The Visual Artists Rights Act of 1990: American Artists Burned Again, 17 CARDOZO L. REV. 373, 389 (1995). [FN112]. Vargas v. Esquire, Inc., 164 F.2d 522 (7th Cir. 1947). The plaintiff in this case, Antonio Vargas, obtained a cancellation of his contract with Esquire magazine in federal district court when the magazine began publishing his illustrations and photographs without attributing them to him. Id. at 524. At first, the pictures and illustrations published bore Vargas's name and signature; then by mutual agreement #Vargas $ was changed to #Varga,$ and the pictures were known as #Varga Girls;$ and eventually the magazine began publishing #Esquire Girls $ pictures with no attribution to Vargas. Id. at 523-24. [FN113]. Id. at 526. [FN114]. Crimi v. Rutgers Presbyterian Church, 89 N.Y.S.2d 813 (Sup. Ct. 1949). A church commissioned an artist to paint a mural for one of its walls. Id. at 813-14. Years later, when the church decided to redecorate, the mural was painted over with no notice to the artist. Id. at 815. [FN115]. Id. at 816. [FN116]. Id. at 817-18. [FN117]. See Granz v. Harris, 198 F.2d 585 (2d Cir. 1952).

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN118]. See, e.g., WGN Cont'l Broad. Co. v. United Video, Inc., 693 F.2d 622 (7th Cir. 1982); Gilliam v. Am. Broad. Cos., 538 F.2d 14 (2d Cir. 1976). [FN119]. See Fisher v. Star Co., 132 N.E. 133 (N.Y. 1921). [FN120]. See Clevenger v. Baker Voorhis & Co., 168 N.E.2d 643 (N.Y. 1960). [FN121]. CAL. CIV. CODE § 987 (West 2006). [FN122]. See Vera Zlatarski, #Moral $ Rights and Other Moral Interests: Public Art Law in France, Russia, and the United States, 23 COLUM.-VLA J.L. & ARTS 201, 217 (1999). [FN123]. N.Y. ARTS & CULT. AFF. LAW § 14.03 (McKinney 2009), preemption recognized by Bd. of Managers of Soho Int'l. Arts Condo. v. City of New York, No. 01-Civ.1226 DAB, 2003 WL 21403333, at *11 (S.D.N.Y. June 17, 2003) (holding that Visual Arts Rights Act, 17 U.S.C. § 301(f) (2006), preempted New York Artists' Authorship Rights Act). [FN124]. See LERNER & BRESLER, supra note 97, at 1266. [FN125]. See id. [FN126]. Stella v. Mazoh, No. 07585-82 (N.Y. Sup. Ct. Apr. 1, 1982). [FN127]. See LERNER & BRESLER, supra note 97, at 1266. [FN128]. See id. [FN129]. CONN. GEN. STAT. § 42-116t(d)(1) (2007). [FN130]. MASS. GEN. LAWS ch. 231, § 85S(g) (2000). [FN131]. N.M. STAT. § 13-4B-3(E) (2009). [FN132]. 73 PA. CONS. STAT. § 2107(1) (2008).

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN133]. LA. REV. STAT. ANN. § 51:2156 (2003). [FN134]. ME. REV. STAT. ANN. tit. 27, § 303(5) (2007). [FN135]. NEV. REV. STAT. 597.740(2) (2009). [FN136]. N.J. STAT. ANN. § 2A:24A-8 (West 2009). [FN137]. R.I. GEN. LAWS § 5-62-6(a) (2008). [FN138]. See Zlatarski, supra note 122, at 217. [FN139]. See id. [FN140]. Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045 (2d Cir. 1988). [FN141]. 17 U.S.C. § 101 (2006). [FN142]. 17 U.S.C. § 106A(b). The author of a work of art may or may not be the copyright holder. Id. [FN143]. 17 U.S.C. § 106A(a). [FN144]. 17 U.S.C. § 106A(a)(3)(B). [FN145]. 17 U.S.C. § 106A(a)(1). [FN146]. 17 U.S.C. § 106A(a)(2). [FN147]. 17 U.S.C. § 106A(c)(1). [FN148]. 17 U.S.C. § 106A(c)(2). [FN149]. See H. R. REP. NO. 101-154, at 6921 (1990).

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN150]. See Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006). [FN151]. 17 U.S.C. § 113(d). [FN152]. 17 U.S.C. § 113(d)(2)(a). [FN153]. 17 U.S.C. § 106A(c)(3). [FN154]. Id. [FN155]. 17 U.S.C. § 106A(d)(1). [FN156]. 17 U.S.C. § 106A(e)(1). [FN157]. 17 U.S.C. § 301. [FN158]. 17 U.S.C. § 101. [FN159]. Id. [FN160]. Id. [FN161]. Pollara v. Seymour, 344 F.3d 265, 269 (2d Cir. 2003). [FN162]. Gegenhuber v. Hystopolis Prods. Inc., No. 92 C 1055, 1992 WL 168836, at *4 (N.D. Ill. July 13, 1992). Plaintiffs were professional puppeteers who created a puppet show for adults in the Chicago area. Id. at *1. When the puppet theatre publicly stated that the show was the sole creation of the theatre and not the puppeteers, plaintiffs claimed that the theatre breached an agreement stating that the puppeteers would receive the proper attribution. Id. at *2. The defendant puppet theatre removed the case to federal court, alleging that the plaintiffs' claims were pre-empted by VARA. Id. at *4. The court ruled that the definition of #visual $ art under VARA is silent as to many types of works that may otherwise be copyrightable, such as literary and dramatic works that may not be visual in nature. Id. at *3. Taking the plain language of the statute at face value, the court refused to include the performance of a puppet show, the puppets, or the sets as #visual art $ and thus held that the plaintiffs had no right to attribution under VARA. Id. at *4. [FN163]. Maharishi Hardy Blechman Ltd. v. Abercrombie & Fitch Co., 292 F. Supp. 2d 535 (S.D.N.Y.

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39 CUMLR 749 39 Cumb. L. Rev. 749 2003). In giving short shrift to the plaintiff's contention that his dragon design was a protected form of visual art under VARA, the court found that the design #plainly $ did not qualify because VARA includes only paintings, drawings, or sculptures that exist in a single copy or in a limited edition of 200 copies or fewer that are signed or consecutively numbered by the author. Id. at 554. The court also found that the design was excluded from protection under VARA for the same reasons that it was excluded from copyright protection: because copyright protection extends to a work's particular expression of idea, not to the idea itself. Id. [FN164]. Carter v. Hemsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995). [FN165]. The court described #applied art $ as using #two and three dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects $ and found that works incorporating applied-art could warrant protection under VARA. Id. at 84-85. [FN166]. Id. at 80. [FN167]. Id. at 86-87. The court noted that VARA defines a #work for hire $ as work performed by an employee in the scope of his employment. Id. In the absence of a definition within the Copyright Act for the words #employee $ or #scope of employment,$ the court looked to the common law for guidance and applied several factors from Community of Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). Carter, 71 F.3d at 86-87. Upon balancing factors such as the hiring party's right to control the manner and means by which the product is accomplished the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party the court concluded that the artists were employees and not independent contractors. Carter, 71 F.3d at 8687. [FN168]. Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526 (S.D.N.Y. 2001). In coming to this conclusion, the court first noted that the definition of #visual art $ under VARA #does not exclude an otherwise qualifying work simply because it is a part of a larger project. $ Id. at 532. Noting that the word #model $ is expressly excluded from the definition of #visual art $ under VARA, the court had to reconcile the plaintiff's contention that her clay statue was not the kind of model that VARA excludes from the definition of #visual art $ and the defendant's contention that it was. Id. The court looked to several dictionary definitions of the word #model,$ which ranged from #a small copy or imitation of an existing object, as a ship, building, etc., made to scale $ to #a preliminary representation of something, serving as the plan from which the final, usually larger, object is to be constructed $ to #a piece of sculpture in wax or clay from which a finished work in bronze, marble, etc. is to be made.$ Id. at 532-33 (quoting WEBSTER'S NEW WORLD COLLEGE DICTIONARY and AMERICAN HERITAGE COLLEGE DICTIONARY). Thus the court found that the meaning of the word was ambiguous for purposes of the case and then turned to the legislative history of VARA, which urged courts to use common sense and #standards of the artistic community $ to interpret the Act's provisions. Id. at 533. From this, the court concluded that in the artistic

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39 CUMLR 749 39 Cumb. L. Rev. 749 community, models are often considered works of art in their own right, and thus the clay statue in question was a protected category of visual art under VARA. Id. at 534. [FN169]. Nat'l Ass'n for Stock Car Auto Racing, Inc. v. Scharle, 184 Fed. Appx. 270, 276 (3d Cir. 2006). [FN170]. The court concluded that the drawings were more akin to drafts or multiple attempts to arrive at an optimal design for the trophy. Id. [FN171]. Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003). [FN172]. Id. at 270. The banner was displayed in a public plaza without a permit and depicted an image of citizens trying to obtain legal counsel to no avail with the words #Executive Budget Threatens Right to Counsel $ and #Preserve the Right to Counsel - Now More than Ever!$ Id. at 266. The banner was vertically ripped into three pieces when it was removed. Id. at 267. Noting that protection under VARA depends on the art-form's intended purpose and use, the court found that because the banner at issue was a promotional tool and VARA expressly does not protect advertising, promotional, or utilitarian works, the banner fell outside the definition of #visual art.$ Id. at 270. [FN173]. Hunter v. Squirrel Hill Assocs., L.P., 413 F. Supp. 2d 517, 519 ( E.D. Pa. 2005). The court looked to VARA's legislative history to determine that Congress viewed murals as a subset of paintings: #the term !painting " includes, murals, works created on canvas, and the like. $ Id. at 519 (quoting Pollara, 344 F.3d at 270). [FN174]. Lilley v. Stout, 384 F. Supp. 2d 83, 86-88 (D.D.C. 2005). [FN175]. Other notable decisions include the United States District Court for the Southern District of New York's ruling that works created prior to the effective date of VARA are protected only if the acts constituting a violation of the act occurred after the effective date. Pavia v. 1120 Ave. of the Americas Assoc., 901 F. Supp. 620 (S.D.N.Y. 1995). The Southern District of New York held that VARA does not protect the moral rights of authors of written works. Choe v. Fordham Univ. Sch. of Law, 920 F. Supp. 44 (S.D.N.Y. 1995). On the issue of damages, the Seventh Circuit refused in 1999 to award enhanced damages to visual artists whose work had been destroyed, but not destroyed willfully. Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999). In 2004, a work was held not to be a work of recognized stature absent expert testimony to the contrary and was thus denied protection under the act. Scott v. Dixon, 309 F. Supp. 2d 395 (E.D.N.Y. 2004). [FN176]. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006). [FN177]. LERNER & BRESLER, supra note 97, at 1265 (citing Grace Gluecke, Bank Cuts Up a Noguchi Sculpture and Stores It, N.Y. TIMES, Apr. 19, 1980, at 1).

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN178]. Id. (citing ARTNEWS, Dec. 1979, at 12). [FN179]. Id. [FN180]. Id. (citing McFadden, Developer Scraps Bonwit Sculptures, N.Y. TIMES, June 6, 1980, at A1). [FN181]. Id. [FN182]. Id. [FN183]. See Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045 (2d Cir. 1988). [FN184]. Id. at 1047. [FN185]. Id. [FN186]. Id. Tilted Arc was a steel arc measuring 120 feet long, 12 feet tall, and several inches thick. Id. It was created out of Cor-Ten steel, which was intended to oxidize over time. Id. Once installed, it nearly bisected Federal Plaza. Serra, 847 F.2d at 1047. Many residents objected to its #rusty $ appearance and to the fact that it obstructed Federal Plaza's previously open space. Id. [FN187]. Serra v. U.S. Gen. Servs. Admin, 664 F. Supp. 798 (S.D.N.Y. 1987). [FN188]. Id. [FN189]. Serra, 847 F.2d at 1045. [FN190]. Id. at 1048-49. The court noted that #the First Amendment has only limited application in a case like the present one where the artistic expression belongs to the Government rather than a private individual,$ id. at 1048, and that #removal of the sculpture is a permissible time, place, and manner restriction narrowly tailored to serve a significant governmental interest.$ Id. at 1049. [FN191]. Id. at 1050.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN192]. Id. at 1049. [FN193]. Phillips, 459 F.3d at 142. In reaching its decision, the First Circuit noted: 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. Id. [FN194]. Id. at 129. [FN195]. See Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89 (D. Mass. 2003). [FN196]. MASS. GEN. LAWS ch. 231, § 85S (2000). [FN197]. Phillips, 288 F. Supp. 2d at 98. [FN198]. Id. at 100. [FN199]. 17 U.S.C. § 106(A)(c)(2) (2006). [FN200]. H.R. REP. NO. 101-514, at 12 (1990), as reprinted in 1990 U.S.C.C.A.N. 6915, 6927. [FN201]. Id. Congress noted that the exception would protect a Canadian shopping center that temporarily decorated a sculpture of geese in flight with ribbons at Christmastime, see Snow v. The Eaton Centre, Ltd., 70 Can. Pat. Reptr. 2d 105 (Ont. High Ct. 1982), but that the exception would not cover the case of #two Australian businessmen who cut Picasso's Trois Femmes into hundreds of small square pieces and sold them as original Picasso pieces.$ H.R. REP. NO. 101-514, at 12 (quotation marks omitted). [FN202]. Id. [FN203]. See 17 U.S.C. § 106A(a)(3)(A) (2006). [FN204]. Phillips, 288 F. Supp. 2d at 100. [FN205]. Phillips, 459 F.3d at 140.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN206]. Id. [FN207]. Id. at 129. [FN208]. Id. at 134. [FN209]. Id. at 140. [FN210]. Id. at 142. [FN211]. Phillips, 459 F.3d at 142. [FN212]. CHERNOW, supra note 3, at 272. [FN213]. Phillips, 288 F. Supp. 2d at 134. [FN214]. Id. [FN215]. Garson, supra note 99, at 233. [FN216]. See Brisman, supra note 36, at 8-9. The author referred to Christo's work as #grand-scale, sitespecific environmental art.$ Id. [FN217]. Church, Common Errors, supra note 2. [FN218]. Id. Jok Church wrote: Error: !Conceptual Artists' No - a conception on a paper is not Christo and Jeanne-Claude's idea of art. They want to build their projects - they could save a lot of money by not building them, by just keeping them on paper - as conceptual artists do. Christo and Jeanne-Claude want to SEE their project realized because they believe it will be a work of art of joy and beauty. The only way to see it is to build it. Environmental Artist: Yes - because they created many works in Cities - in Urban environments and also in Rural Environments but NEVER in deserted places, and always sites already prepared and used by people, managed by human beings for human beings. Therefore they are not #Land Art $ either. Id. [FN219]. CHERNOW, supra note 3, at 281.

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39 Cumb. L. Rev. 749 [FN220]. Id. (quotation marks omitted). [FN221]. Church, Common Errors, supra note 2. [FN222]. Public art, http://en.wikipedia.org/wiki/Public_art (last visited Apr. 21, 2009). [FN223]. Environmental art, http://en.wikipedia.org/wiki/Environmental_art (last visited Apr. 21, 2009). [FN224]. Jok Church, Christo and Jeanne Claude: Frequently http://www.christojeanneclaude.net/faq.shtml (last visited Apr. 21, 2009).

Asked

Questions,

[FN225]. ARNASON, supra note 24, at 514 (#[A]s with all of Christo's projects, the wrapping of the Reichstag, in itself a work of performance art, was heavily documented each step of the way through myriad photographs.$). [FN226]. Glueck, supra note 96. [FN227]. Interview by Jonathan Fineberg with Christo at the University of Illinois at Urbana-Champaign (1977). [FN228]. CHERNOW, supra note 3, at 241. [FN229]. Interestingly, the district court in Phillips v. Pembroke Real Estate was faced with the suggestion by plaintiff Phillips that the park in Boston housing his 27 sculptures should be treated as a work of visual art. Phillips, 459 F.3d at 135. Phillips contended that the park as a whole, including his sculptures within it, should be viewed under VARA as #one large integrated piece of !sculpture.$" Id. at 137. The district court decided that, while an entire park could conceivably constitute a work of visual art if the artist designed the park and everything in it, that particular park could not fall into that category because Phillips did not create most of the elements in the park and his sculpture was not integrated with them. Id. Thus the district court left open the legal question of whether a park as a whole could ever constitute a work of visual art under VARA. Id. Looking at this result in light of Christo and Jeanne-Claude's The Gates in New York City's Central Park in 2005 and hypothesizing that someone had removed the bright orange panels before the set date of removal, the logical conclusion is that the artists would likewise not be afforded protection under VARA as creators of #park art $ because they did not design the myriad of other elements in Central Park. However, other artists working in the genre of landscape design might find protection, assuming a court decides that VARA protects #park design $ as a category of visual art. [FN230]. 17 U.S.C. § 101.

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN231]. H.R. REP. NO. 101-514, at 6 (1990), as reprinted in 1990 U.S.C.C.A.N. 6915, 6921. [FN232]. Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805, 821 (2005) (suggesting that the law ought to acknowledge the field of aesthetics and that judges should be explicit and self-conscious about their philosophical bent in making determinations of what is and what is not art). [FN233]. Hearing on H.R. 2690 Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the H. Comm. on the Judiciary, 101st Cong. 1 (1989) (statement of Rep. Edward Markey). [FN234]. LERNER & BRESLER, supra note 97, at 1307. [FN235]. H. R. REP. NO. 101-154, at 6 (1990), as reprinted in 1990 U.S.C.C.A.N. 6915, 6921. [FN236]. Serrano's photograph depicted a small plastic crucifix with the body of Jesus Christ submerged in a glass of the artist's urine and blood. Of particular controversy was the fact that the National Endowment for the Arts supported the work. See Controversial Art, http:// www.your3dsource.com/controversialartwork.html (last visited Apr. 21, 2009). [FN237]. Ofili's painting of the Virgin Mary featured sexually explicit cutouts covered with elephant dung. When the Brooklyn Museum of Art exhibited the work in 1999, the Catholic Church and mayor of New York Rudolph Giuliani were outraged. See Controversial Art, http:// www.your3dsource.com/controversialartwork.html (last visited Apr. 21, 2009). [FN238]. Peter Schjeldahl, Gated, NEW YORKER, Feb. 28, 2005, at 30. [FN239]. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). [FN240]. Farley, supra note 232, at 805-07. [FN241]. Id. at 807. [FN242]. Id. at 813. [FN243]. See Hunter, 413 F. Supp. 2d at 520 (#Very few courts have addressed the standard for determining whether a work is of !recognized stature." However, this finding generally depends upon the testimony of experts.$).

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39 CUMLR 749 39 Cumb. L. Rev. 749 [FN244]. See Farley, supra note 232, at 837. [FN245]. Id. at 837-38. [FN246]. Maharishi, 292 F. Supp. 2d at 554. [FN247]. Pollara, 344 F.3d at 271. 39 Cumb. L. Rev. 749 END OF DOCUMENT

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