We conclude our series on public art and percent-for-art programs by focusing on a recent case involving the respected American sculptor, Alice Aycock. The artist’s sculpture, Star Sifter, was created in 1998 for the John F. Kennedy Airport, New York City. The recent lawsuit was prompted by the planned removal, and thereby destruction, of the commissioned work of art.

Aycock filed a complaint for injunctive relief in aid of arbitration against the Terminal One Group Association (TOGA), which is responsible for management at JFK Airport Terminal One, in order to enjoin the defendants from breaching the contract with her and from violating her rights under VARA (the Visual Artists Rights Act). When the case went to court in Manhattan in April 2012, federal judge Robert W. Sweet issued a temporary restraining order blocking TOGA from starting to dismantle the sculpture. It was further decided in May that the case would go to arbitration, as specified in the contract between the two parties.

TOGA commissioned Aycock to create a sculpture for the newly constructed Terminal One. Aycock’s work was meant to be part of the airport’s public art program, and was funded through its percent-for-art provision. The piece was to have a dual purpose: the “sculpture for the second floor would both enhance the experience of passengers as well as address a security flaw in the terminal’s architectural design” by “creating a screen to separate two spaces”. Indeed, it was noted that passengers waiting in the food court area on the top floor could easily slip unscreened items to passengers below, through the open space between the two floors, and thereby avoid the security screening process.

Aycock’s commission agreement specified that removal of the work would only be permitted if such removal was “required or necessary” (section 4.C). However, after 13-plus years in place, TOGA decided to “remove and dispose of” the work, and so informed the artist in a letter dated Dec. 12, 2011. TOGA’s motivation, which was articulated only as the matter reached the courts, was that it wished to create space for additional food concessions in the rotunda.

Aycock’s lawyers made several counter-arguments: this stated motivation did not meet the “required or necessary” requirement pertaining to the removal, thereby breaching the contract and additionally violating plaintiff’s rights under VARA by the intentional distortion, mutilation or destruction of the work, prejudicial to the artist’s honor and reputation (17 U.S.C. §106A(a)(3)(A)). Moreover, the contract had provided for recourse to arbitration in the event of a dispute, which is why Aycock had no other choice but to seek temporary and preliminary injunctive relief.

VARA is a federal law granting exclusive rights to artists of visual works such as paintings, drawings, sculptures, and still photographs (see previous post for text). VARA’s key concepts are the artist’s right of attribution and right of integrity. The latter right prevents “any intentional distortion, mutilation or modification of a work of visual art that is prejudicial to the author’s honor or reputation”, and “any intentional or grossly negligent destruction of a work of recognized stature”.

Aycock claimed that removal of the sculpture would lead to its destruction, as it was created specifically for the particular rotunda site within Terminal One. Also, Aycock argued that her work has acquired recognized stature through various press statements, both from art experts and from TOGA itself: in its 1998 press release, TOGA praised the art’s “elegance and beauty”, as a “mantle of Alexander Calder” and “focus of great attention”. This argument satisfied the 2-prong test set out in an earlier VARA case, Carter v. Hemsley-Spear: in order to be “of recognized stature”, a work of visual art needs to be meritorious and be recognized by art experts or other members of the artistic community.

Additionally, it seemed that in its December 2011 letter, TOGA had no real motive justifying its desire to remove the sculpture, as this food concession-related reason was articulated only in the federal court hearing – and is not fully supported by the facts: there are currently seven food concessionaires in the mezzanine alone.

The plan to expand the food offerings does not seem to fit in any of the exceptions provided for in VARA. (VARA permits a modification of the work as a result of the passage of time or the inherent nature of the materials, or as a result of conservation or public presentation (17 U.S.C. 106A(c) (1)&(2)).) Nor does the plan meet the conditions for removal under the agreement: the defendants do not explain how replacing the work with additional food concessions is “required or necessary”.

This case is not isolated, other cases illustrate the possible fate of a public work of art when it is “removed”. Most notoriously, Richard Serra’s Tilted Arc, commissioned for the Federal Plaza in New York by the General Services Administration’s Art-in-Architecture program in 1981, was dismantled in 1989 after much controversy. Many publicly opposed the sculpture, invoking various reasons such as aesthetic repulsiveness, inconvenience in walking around it, or its ability to attract graffiti and rats. Many others, though, notably the arts communities, applauded its monumentality and importance. The decision to remove and dismantle the sculpture, in spite of Serra’s strong opposition, occurred the year before VARA was enacted.

In Martin v. Indianapolis, plaintiff’s large outdoor stainless steel sculpture was demolished by the City as part of an urban renewal project, and when the artist sued the City, the Court acknowledged a “bureaucratic failure within City government, not a willful violation of the plaintiff’s VARA rights”.

In Phillips v. Pembroke Real Estate Inc., a real estate company wished to remove and relocate a sculpture from a Boston park. The court ruled on whether the art was a single work of integrated art: it found that most of the elements were a single integrated piece, but not all of them. Therefore, the moving of the sculpture was allowed, as long as the individual elements were not “altered, modified or destroyed”. While this ruling echoes previous cases in stating that VARA’s objective is “not to preserve a work of art where it is but rather to preserve the work as it is”, this reasoning has been questioned by other courts.

Discouragingly, the conclusion that can be drawn from the Aycock case is that, even where a negotiated agreement is crystal clear, an owner can act in disregard of this agreement. The parties had a solid commission agreement, covering most of the deal points described in our previous posts: creation according to specific purpose and design; artist’s responsibility to design, fabricate and install the work; payment in several installments; artist retaining ownership of copyright; granting a limited license to TOGA for reproduction rights; removal only upon notice to the artist, and if “required or necessary”; etc. And yet, the parties found themselves in court – in spite of the arbitration provision. Therefore, there are times when parties work their best to craft thorough and careful agreements for public art commissions, but they might not be able to avoid litigation.

This three-part overview of public art exposes the makings of public art programs such as percent-for-art initiatives, how they are implemented through complex art commission agreements, and the occasional court proceedings that follow. Yet, and thankfully so, the potential legal hassle does not seem to deter public art projects: on the contrary, public art is prospering and communities are striving to make culture accessible. It seems that 1% will continue to Occupy public space for the great pleasure of the 99%, indeed, the 100%.