Pollara v. Seymour
2002 U.S. Dist. LEXIS 10125, 2002 WL 1273643, 206 F. Supp.2d 333 (2002)
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Rule of Law:
A work of art created for a single, temporary event with no intent for future preservation or display is not a "work of recognized stature" under the Visual Artists Rights Act (VARA). Additionally, artwork created to attract attention to an event or cause qualifies as "promotional" material and is therefore excluded from VARA's definition of a "work of visual art."
Facts:
- Joanne Pollara, an artist, was hired by the New York State Defenders Association (NYSDA) to create a large painting for a protest against cuts to legal aid funding.
- The mural, measuring 10 by 30 feet on photographic paper, depicted figures waiting outside closed legal offices and included text selected by NYSDA.
- Pollara intended the mural to be a "single use" piece, serving as a backdrop for an information table at a one-day lobbying event at the Empire State Plaza (ESP), with no plans for future preservation or display.
- On the evening of March 15, 1999, Pollara installed the mural at the ESP without a permit, assuming NYSDA had obtained permission.
- That same evening, before the event began, employees of the New York State Office of General Services (OGS), under the supervision of Plaza Manager Thomas E. Casey, removed the mural.
- During the removal process, the OGS employees severely tore and damaged the mural.
Procedural Posture:
- On June 14, 1999, Joanne Pollara sued Joseph J. Seymour and Thomas E. Casey in the U.S. District Court for the Northern District of New York.
- Pollara alleged violations of the Visual Artists Rights Act (VARA) and 42 U.S.C. § 1983.
- The defendants moved for summary judgment on December 21, 2000.
- On July 18, 2001, the trial court granted summary judgment for defendant Seymour, dismissing him from the case, but denied summary judgment for defendant Casey on the VARA claim.
- Pollara's § 1983 claim was also dismissed at the summary judgment stage.
- The remaining VARA claim against defendant Casey proceeded to a bench trial on October 17, 2001.
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Issue:
Does a large, temporary mural, created for a one-time political protest and intended only for that single use, qualify as a "work of visual art" of "recognized stature" protected from destruction under the Visual Artists Rights Act (VARA)?
Opinions:
Majority - Hurd, District Judge
No. A temporary mural created for a single promotional event is not a "work of recognized stature" or a "work of visual art" protected by VARA. To qualify as a "work of recognized stature," a work must not only be meritorious but also intended for preservation; works created for a single, temporary use do not meet this standard because they were never positioned to achieve lasting stature. The court reasoned that VARA's purpose is to protect works intended to be preserved as art, not temporary displays. Pollara herself testified that the mural was for a single use and had no other intended purpose or value. Furthermore, the mural falls under VARA's statutory exclusion for "promotional" material. Using the ordinary definition of promotion—attracting publicity—the court found the mural's sole purpose was to attract attention to the Gideon Coalition's message and event. Because it was created exclusively to promote this event, it is not a "work of visual art" under the statute.
Analysis:
This decision significantly narrows the scope of the Visual Artists Rights Act (VARA) by introducing the artist's intent regarding permanence as a key factor in the "work of recognized stature" analysis. It establishes that temporary, event-specific works, even if artistically meritorious, may lack protection if they were never intended for preservation. Furthermore, the court's broad interpretation of "promotional material" to include advocacy art for a specific event could exclude a wide range of political and commissioned works from VARA's protections. This ruling suggests that the purpose and intended lifespan of a work are as critical as its artistic merit in determining its legal status under VARA.
