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MARTIN vs. CITY OF INDIANAPOLIS Whether or not a sculptor can prove a VARA claim
192 F.3d 608| October 3, 1997| Barker J after the unauthorized destruction of his sculpture
The visual Artist Rights by showing that his work was one of recognized
Betamax stature?
This matter comes before the Court on Plaintiff's
HELD
motion for summary judgment and Defendant's cross-

motion for summary judgment. For the reasons set
YES, VISUAL ARTIST RIGHTS ACT (VARA) OF 1990
forth below, the Court hereby denies Defendant's
motion for summary judgment and grants Plaintiff's VARA protects an artists rights to claim authorship
motion for summary judgment. and to disclaim authorship in appropriate
circumstances, including the mutilation or
FACTS
modification of a work of visual art that would be

prejudicial to the artists honor or reputation.
JAN RANDOLPH MARTIN ("MARTIN"), IS AN ARTIST
WHO RESIDES IN INDIANAPOLIS. Moreover, the author of a work of visual art shall have
Jan Martin is a visual artist. He was granted the right to prevent any destruction of a work of
permission by the City of Indianapolis to construct recognized stature and any intentionally or grossly
a steel sculpture on land owned by John LaFollette, negligent destruction of that works is a violation of that
chairman of the company. The Company agreed to right.
provide the materials for the sculpture.
The City and the Company thereafter entered into a REASONING
Project Agreement that granted a zoning variance
To determine if a work of visual art is one of
permit to erect Martins sculpture, and which
recognized stature, the court applied the test
included a provision that should the City determine
that the sculpture is no longer compatible with existing articulated in Carter v. Helmsey-Spear? which found
land use or the acquisition of the property is necessary, that a recognized stature is proved if the work of art
notice will be sent giving the owners of the land and the has: (1) merit or intrinsic worth and (2) public
sculpture 90 days to remove it. acknowledgement of the merit. To satisfy the public
acknowledgement prong, the work of visual art must be
MARTIN CREATED THE SCULPTURE, ENTITLED recognized by art experts or members of the artistic
"SYMPHONY # L," ON WEEKENDS AND HOLIDAYS community and is proven by expert testimony as to
OVER A PERIOD OF 2 YEARS, COMPLETING stature of the work of art in the community.
CONSTRUCTION ON OR ABOUT MAY 7, 1987.
It received favorable comments from the community as The Court reasoned that the Carter test does not
evinced by news and magazine articles, whose require the onerous burden of expert testimony when a
admissibility is at issue in this case. In 1992, however, work of visual art is destroyed because it is impossible
the City informed LaFollette that due to urban to elicit first-hand expert testimony or evidence
planning, the sculpture had to be removed. concerning the work since was no longer in existence.
Kim Martin, president of the Company, proposed that As a result, Martin can introduce articles and letters
the sculpture be donated to the city as long as his
concerning his work of visual art.
brother, the sculptor, will have a say on its next
location. The Mayor considered this and notified Martin The Court reasoned that such evidence does not qualify
that notice will be given in case of removal of the as hearsay because the plaintiff is not offering them for
sculpture. Surprisingly, however, after buying the their truth, rather they are being offered to show
land, the City granted a contract to demolish the
that the declarants said such statements about the
sculpture, and demolition followed without prior
plaintiffs work of visual art.
notice to the sculptor Jan Martin or the Company.
RULE OF LAW
MARTIN BROUGHT SUIT AGAINST THE CITY FOR A
VIOLATION OF HIS RIGHTS UNDER THE VISUAL A plaintiff may use articles, letters, etc. in lieu of an
ARTISTS RIGHTS ACT (VARA) OF 1990. Martin expert witness to prove a work of recognized
attempted to offer evidence that his sculpture was one stature when an expert is not available to testify
of recognized stature under VARA through because of the destruction of the work of art and
newspaper clippings and articles, rather than expert the use of such is not considered hearsay.
testimony. Martin was granted summary judgment. The
city appealed and Martin cross-appealed. DISPOSITION

ISSUE Martin entitled to VARA rights but not enhanced
damages because the Citys conduct was not willful.

BASIL MAGUIGAD | GAITA MASANGKAY | KAT NIETO | JO SANTOS | TYN SISON | ALLEN UY
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Justice Manion

A plaintiff cannot satisfy his burden of demonstrating

recognized stature through old newspaper articles

and unverified letters, some of which do not even

address the artwork in question. Rather, as the district
court stated in Carter, in "making this showing [of
recognized stature] plaintiffs generally, but not
inevitably, will need to call expert witnesses to testify
before the trier of fact."861 F.Supp. at 325. Instances
where expert testimony on this point is not necessary
will be rare, and this is not one of those exceptional
cases where something of unquestioned recognition
and stature was destroyed. Furthermore, where
newspaper articles are admitted into evidence only to
acknowledge recognition but not for the truth of the
matter asserted (that the art in question was good or
bad), a plaintiff needs more to overcome a defendant's
motion for summary judgment on a VARA claim, much
less prevail on his own summary judgment motion.
While the very publication of newspaper articles on a
work of art may have bearing on the "recognized"
element, there has to be some evidence that the art had
stature (i.e., that it met a certain high level of quality).
The newspaper articles are hearsay and not admitted
for the truth of the matter asserted in them. Construed
in the light most favorable to the defendant, they
cannot demonstrate by a preponderance of the
evidence that the plaintiff's art was of a recognized
stature, and that no reasonable jury could find
otherwise. Experts need to weigh in here, and the trial
court and perhaps this court need to come up with a
clearer definition of when works of art achieve
"recognized stature."

BASIL MAGUIGAD | GAITA MASANGKAY | KAT NIETO | JO SANTOS | TYN SISON | ALLEN UY