Visual Artists Rights Act…not a boat load of help for the creators of La Contessa

The facts of the case as indicated in the court documents are as follows: Plaintiffs Simon Cheffins (“Cheffins”) and Gregory Jones (“Jones”) (collectively “Plaintiffs”) brought and action against Michael Sewart (“Defendant”) alleging conversion and violation of their rights under the Visual Artists Rights Act, 17 U.S.C. § 106A (“VARA”).  The complaint stems from Defendant’s destruction of La Contessa, an artwork described by Plaintiffs as a “mobile, interactive replica of a 16th Century Spanish galleon,” on or about December 5, 2006.  Plaintiffs created La Contessa and claim to be its owners. La Contessa was an art piece resembling a Spanish galleon ship and built over a school bus.  On May 8, 2002, Cheffins received a $15,000 grant from Black Rock City LLC (“Burning Man“) to support the construction of La Contessa. In exchange, Cheffins granted Burning Man a five-year license to use La Contessa at its events, a right of first refusal in the event the artwork was sold, and a number of other rights. After obtaining the grant, Cheffins bought and registered in California a used school bus and therafter built La Contessa. Beginning in September 2003, La Contessa was stored on a ranch with the permission of the ranch’s life estate tenant, Joan Grant.  Defendant, through his company Granite Investment Group, LLC, was at all relevant times the owner of the ranch.  Sometime in 2005, Grant moved off the ranch and abandoned her life estate, causing the property to revert to Defendant. Some time after the property reverted to Defendant, one of his representatives notified Burning Man, but not Plaintiffs, that if La Contessa was not removed it would be destroyed. On or about December 5, 2006, Defendant destroyed La Contessa by setting it on fire.

Pursuant to VARA, the “author of a work of visual art” has the right:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

In this case, the Defendant’s expert witness concluded that La Contessa was applied art because “its primary purpose . . . was to provide transportation and other uses . . . for the days long Burning Man festival and for the extreme revelries that characterize this event.” The Court accepted the Defendant’s argument and concluded that the because a bus is a utilitarian object, the purpose of which is to move and transport people, and since, La Contessa was built on top of a bus and retained the bus’ innate function of movement and transport, La Contessa was thus a functional object and not protected under the VARA. Read the Court’s Opinion.

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