A recent federal court decision illustrates some of the challenges inherent in commissioning outdoor environmental artwork; the difficulties parties face in making sure that both the art and their contracts will withstand the test of time; and the limitations of the Visual Artists Rights Act of 1990 (VARA).
 
Background
 
This dispute focuses on an outdoor art installation titled “Greenwood Pond: Double Site.”  The Des Moines Art Center, an Iowa museum, commissioned artist Mary Miss to create this site-specific outdoor installation in 1989; the result was a series of wooden structures, walkways, and viewing platforms around a pond in a Des Moines park.  Its design was intended to encourage visitors to interact with the property’s environment in a unique way.  
 
Since its completion in 1996, however, “Greenwood Pond: Double Site” has deteriorated, largely due to weather and public use.  DMAC says its condition has now reached a point where safety has become a concern, and parts of the installation have had to be closed off from public access.  And, according to an assessment obtained by DMAC, to properly restore this project would cost DMAC millions of dollars.  So in late 2023, the Art Center informed Miss that it intended to “decommission” the entire site and remove it, as the Art Center could “see no other way forward.”    
 
The Lawsuit
 
On April 4, in response to DMAC’s decision, the artist, Mary Miss, filed a lawsuit in an Iowa federal district court against DMAC to stop them from removing her installation.  Her complaint brought two main categories of claims.  The first alleges, essentially, a breach of contract, citing the contract between Miss and DMAC signed at the outset of the project.  That contract, among other things, provides that DMAC “will not intentionally damage, alter, relocate, modify or change the Work without the prior written approval of the Artist”—permission that Miss has refused to give.
 
The second is relief under VARA, which, among other things, protects the moral rights of visual artists by banning the destruction of certain paintings, drawings, prints or sculptures of “recognized stature.”  Where a qualifying work is being threatened with destruction, VARA permits the artist to seek injunctive relief to halt that action.
 
 
The Decision
 
On May 3, the court issued a decision frankly stating that “neither side is entitled to what it wants.”  In reaching its decision, the court extensively analyzed the original contract between artist and institution.  The court concluded that the DMAC’s proposed course of action would violate the part of the contract that says DMAC cannot “intentionally damage, alter, relocate, modify or change the Work without the prior written approval of the Artist.”  The court also held, however, that another section of the same contract unambiguously gives DMAC the unilateral right to decide whether to undertake repairs or restoration.  Thus, the Iowa federal court granted Miss a preliminary injunction to prevent DMAC from removing her installation.  But the court also ruled that Miss cannot force the DMAC to restore it either.
 
Interestingly, the court held that while Miss was likely to prevail on her contract claim, the same could not be said for her VARA claim.  The court did say that Miss had put forward sufficient evidence that the installation was a “work of recognized stature,” where it has “been recognized by artists, art scholars, art patrons, art critics, architects, and others,” has been studied in college courses and featured in at least one book and one monograph.  This is consistent with other case recent case law exploring the concept of “recognized stature” (see here for an example).  But the court held that Miss’s VARA claims were unlikely to succeed for the simple reason that the court concluded that “Greenwood Pond: Double Site” was not a “painting, drawing, print or sculpture” and thus was not covered by VARA at all.  The court acknowledged that the work blends the natural landscape with wooden features like a boardwalk, walking path, warming hut, and other structures, but opined: “It is a stretch even to refer to these structures as sculptures in the metaphorical sense; they are surely not sculptures in the literal sense,” and that this “is not what Congress had in mind when it granted moral rights protections to artists for their ‘sculptures.’” 
 
Future of “Greenwood Pond: Double Site” Remains Unsettled
 
The court’s ruling leaves both parties in a predicament: DMAC cannot remove the work, but they are also not required to spend the money to restore it, leaving the installation stuck on their property in its deteriorating condition.  Yet, this does not change the fact that “Greenwood Pond: Double Site” is in a state of disrepair that is arguably unsafe for visitors and must be renovated if it is to be re-opened for the public.  According to a statement by DMAC, fencing has been installed around all dangerous portions.  So, how can the parties move forward with this case?
 
The court indicates that one potential answer may lie in the fact that the land where Greenwood Pond is located is not owned by the DMAC, but rather by the City of Des Moines.  And a 1990 agreement between the City and DMAC provides that “the City may require the Art Center to repair or remove a sculpture if the Art Center has failed to either maintain the structural integrity of a sculpture or to correct any unsafe condition within a sculpture.”  And DMAC’s contract with Miss cross-references the agreement with the City, stating that the artist’s deal with DMAC “is subject to the terms of the [City-DMAC] agreement” and that if there is a conflict between the two contracts, the City-DMAC agreement “shall take precedence.”  The court noted that so far, there was no indication that the City has required the demolition of the installation; rather, the City had apparently sought to stay out of the dispute and leave the decision to DMAC.  But the court says its ruling holds “in the absence of a directive from the City”—suggesting that if the City affirmatively requires DMAC to repair or remove the installation, that would govern. 
 
Insights on VARA and Commissioning Outdoor Artwork
 
As we have noted before, VARA is a relatively young section of the Copyright Act, so courts do not have an extensive body of precedential case law on which to draw (as compared with, say, fair use or other longstanding copyright doctrines).  And this dispute illustrates some of the ways in which courts are still struggling with how to interpret VARA .
 
First, this case shows that there is still some uncertainty as to the basic question of what kind of art is protected under VARA.  Multiple American courts have expressed skepticism about whether and how VARA should apply to “site-specific” art, where an artist’s work is inextricably intertwined with its location; this Iowa court, however, side-stepped that question and instead held that Miss’s collection of boardwalks, walking paths, and other structures is not a “sculpture” at all. 
 
Second, this case does not explore certain key exceptions built into VARA which provide that, in most cases, an artist does not have the right to prevent modifications of a work that are a result of conservation, or of how a work is presented, or modifications resulting from the passage of time.  See 17 U.S.C. § 106A(c).  If the court had reached a different conclusion on whether Miss’s work was a sculpture, it might have needed to delve further into these exceptions—and into a problem inherent in many outdoor installations, which is that a work may change over time due to a variety of factors, ranging from weather and an artist’s choice of materials to an owner’s maintenance and conservation decisions.  For example, Miss argues that the current state of her work is not just the fault of natural occurrences, but rather the poor maintenance and conservation efforts of the DMAC.  According to the Cultural Landscape Foundation (CLF), similarly vulnerable works of Miss’s – installed in the 1980s and constructed from wood and other natural materials – have lasted the test of time and natural causes. Her work “South Cove” in Battery Park City, for instance, withstood Hurricane Sandy.
 
Even in light of these uncertainties, this case can still offer insight for collectors, property owners, artists, and other stakeholders who may be considering a commission of an outdoor art installation.  There are ways for parties to protect themselves—it just must be on the front end and in writing.  The parties here tried to agree in advance about some of their respective rights regarding this project—but they did not fully spell out what should happen in the event of this kind of serious deterioration.  It is also worth noting that VARA states that the rights granted through this act can be waived if the artist agrees to such a waiver in writing (see 17 U.S.C. § 106A(e)); parties should consider whether such a VARA waiver might be appropriate for a particular contemplated project.  When crafted thoughtfully, contracts can protect artists’ and property owners’ rights, and avoid the kind of legal dilemma currently facing Mary Miss and the DMAC.

Note: This blog post was co-authored by Laurel Caruso and Kate Lucas.  Laurel is currently an undergraduate on a pre-law track at the University of Pennsylvania, where she is majoring in art history with a minor in statistics, and we are pleased to have Laurel as a legal intern at Grossman LLP this summer.