Phillips v. Pembroke Real Estate, Inc.

459 F.3d 128 (1st Cir. 2006)

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Nature of the Case

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Facts

P is a nationally recognized sculptor who works primarily with stone and bronze forms that he integrates into local environs. P's commissioned work from the past twenty years can be found at private companies and universities and in public spaces across the United States. Eastport Park is a public sculpture park with a nautical theme. In addition to P, three other artists also crafted art located in the Park. D leases the land on which the Park is built from the Massachusetts Port Authority (Massport). Massport and the Boston Redevelopment Authority must approve any changes to the design of the Park. The Park is required to be open to the public, free of charge, twenty-four hours a day. In 1999, D commissioned P to work on the Park in conjunction with the development of the World Trade Center East office building. P worked closely with the design of the Park. IP aided in the design of a series of repeated spirals that run along the axis of the Park from the northeast to the southwest corner. P and D executed two contracts. Under the 'Eastport Park Artwork Agreement', P created twenty-seven sculptures for the Park, comprised of fifteen abstract bronze and granite pieces and twelve realistic bronze sculptures of various aquatic [creatures, including frogs, crabs, and shrimp. Under the 'Eastport Park Stonework Agreement', P was responsible for the design and installation of stone walls, granite stones inlaid into the Park's walkways, and other landscape design elements. P's work is organized along the diagonal axis running from the northeast to the southwest corner, at the center of which is his large spherical sculpture entitled 'Chords', the centerpiece of the Park, which P personally carved from granite. P designed a bronze medallion with Zodiac signs, which crowns an S-shaped circular granite path, also of P's design; outlying sculptures off of the main axis (many bronze crabs, frogs, and shrimp and a large seashell); and the curve motifs. In 2001, D decided to conduct a redesign and retained Elizabeth Banks, a British landscape artist. D wanted to simplify walkways and include more plants for better shade. D wanted to remove much of the original stone, which had caused maintenance problems. D wanted to simplify walkways and include more plants for better shade. D wanted to remove much of the original stone, which had caused maintenance problems. The plan called for the removal and relocation of P's sculptures, relocation of some of the granite paving, changing several walkways, and changing finished granite objects. P filed suit in federal district court, seeking injunctive relief under VARA and MAPA. The district court issued a memorandum and order in which it found that P had established the likelihood of showing: (1) that most, but not all, of his work in the Park constituted 'one 'integrated work of visual art,'' that P had no right to the placement or public presentation of his sculpture under the exception in § 106A(c),' and that the integrated sculpture along the axis of the Park is a critical element of those works, changing the location of the sculpture constitutes an impermissible alteration under' MAPA. Thus, consistent with VARA, P's free-standing works could be moved; and the multi-element, integrated work of art along the northeast-southwest axis could be disassembled and moved piecemeal, so long as individual pieces comprising this integrated work of art were not altered, modified, or destroyed. Under the broader protections of MAPA for site-specific art, the court granted a preliminary injunction preventing D from altering the Park. The district court certified the question of whether MAPA protected P's work in the Park to the Massachusetts Supreme Judicial Court (SJC). SJC concluded that MAPA did not protect site-specific art. P's sculptures could be removed from the Park consistent with VARA. The district court vacated the preliminary injunction it had granted and entered judgment on all counts. Both parties appealed. P challenges only the district court's conclusion that the public presentation exception of VARA permits D to remove from the Park his large, multi-element work of art, which the district court found was both integrated and site-specific.