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Phillips v. Pembroke Real Estate, Inc. - 459 F.3d 128 (1st Cir. 2006)


Under the Visual Artists Rights Act of 1990, 17 U.S.C.S. § 106A, "site-specific art" is a subset of "integrated art." A work of "integrated art" is comprised of two or more physical objects that must be presented together as the artist intended for the work to retain its meaning and integrity. In a work of "site-specific art," one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it.


David Phillips brought suit against Pembroke Real Estate, Inc. in federal district court, asserting that the removal of any or all of his work, consisting of multiple pieces of sculpture and stonework, from Eastport Park in South Boston would violate his statutory rights under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C.S. § 106A, and the Massachusetts Art Preservation Act (MAPA), Mass. Gen. Laws ch. 231, § 85S. The district court ruled that VARA recognized integrated art, and that most of Phillips' sculptures and stonework in the Park constituted "one integrated 'work of visual art'" -- with the remaining pieces being "individual free-standing pieces of sculpture, which are not integrated into the other pieces." It also held that Phillips' integrated work of art was an example of site-specific art. But the court held that Pembroke could remove Phillips' works from the Park pursuant to VARA's so-called "public presentation" exception.  Phillips challenged that reading of the public presentation exception on appeal.


Did the district court err in its conclusion that VARA applied to site-specific art?




Although the Court of Appeals for the First Circuit disagreed with the district court's reasoning that VARA applied to site-specific art, the appellate court affirmed the decision of the district court permitting Pembroke to remove Phillips' works from the Park. By definition, site-specific art was integrated with its location as one of its elements. Therefore, the removal of a site-specific work from its location necessarily destroyed that work of art. VARA did not establish two different regulatory regimes: one for free-standing works of art and one for site-specific art that could never be moved and must always be displayed. VARA did not protect site-specific art and then permit its destruction by removal from its site pursuant to the statute's public presentation exception. VARA did not apply to site-specific art at all.

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