the defense of qualified immunity, arguing that the proof did not
demonstrate that he did anything but execute ordinary duties in good
faith. Decision on both motions was reserved, as was the decision on the
findings of fact and conclusions of law. Both parties were afforded an
opportunity to submit proposed findings of fact and conclusions of law,
which they have done.
III. CONCLUSIONS OF LAW
In order to maintain her claim under VARA, Pollara was required to show
that (1) the destroyed work was a "work of visual art" and a "work of
recognized stature"; and (2) the destruction of her work was either
intentional or grossly negligent. 17 U.S.C. § 106A(a)(3)(b).
A. Work of Recognized Stature
On the prior motion for summary judgment, the question of whether or
not Pollara's mural constituted a "work of recognized stature" was
expressly reserved for trial. See Pollara, 150 F. Supp.2d at 396 n. 7
("Because this decision is limited to the question of whether or not the
fact that Pollara's painting had never been publicly displayed precludes
it from being a work of "recognized stature" within the meaning of
Section 106A, it is not now decided whether or not the painting is, in
fact, a work of "recognized stature." The resolution of this question is
reserved for trial, at which time expert testimony will be received on
this issue.). This issue was reserved because defendants had opted to
rely solely upon the fact that Pollara's mural had never been publicly
displayed prior to its destruction as proof that she had failed to create
an issue of fact regarding whether her mural was a work of "recognized
stature," and it was held that this fact, standing alone, was not
sufficient to overcome plaintiff's expert affidavits describing her mural
as such a work. See Pollara, 150 F. Supp.2d at 398.
As noted in the prior decision, the term "work of recognized stature"
is not defined by the statute.*fn5 Accordingly, to the limited extent
courts have considered the meaning of this term, they have focused on (1)
whether "the visual art in question has `stature,' i.e. is viewed as
meritorious"; and (2) whether "this stature is `recognized' by art
experts, other members of the artistic community, or by some
cross-section of society." Carter v. Helmsley-Spear, Inc, 861 F. Supp. 303,
325 (S.D.N.Y. 1994).
As applied to the instant case, this test offers little assistance in
the determination of whether or not Pollara's mural meets the statutory
definition. This is so because, while plaintiff's work was unquestionably
meritorious and this merit was recognized by her experts and in this
decision, it was intended solely as a display piece for a one-time
event. It defies the underlying purposes of VARA to assume that the
statute was intended to protect works of artistic merit without regard to
whether such works were ever intended as "art" or whether they were
intended to be displayed as art or were otherwise intended to be
preserved for posterity as works of artistic merit.
This is particularly true where, as here, there was never any intent by
the artist to preserve her work for future display. As such, it is held
that the presumption underlying the court's decision on defendants'
summary judgment motion — that Pollara's work was deprived of the
opportunity to acquire "stature" by the defendants' actions — does
not apply here. This is so because the trial testimony revealed that,
even in the absence of the conduct at issue, Pollara's mural would not
have achieved "recognized stature" in the relevant community.*fn6
Instead, the mural would have been used solely to publicize the Gideon
Coalition event, and would not have been preserved as a work of stature
— recognized or otherwise. The fact that the mural was not intended
to have any lasting value is evidenced by her admission that she suffered
no financial injury as a result of its destruction, and also because
there was no evidence that any of plaintiff's other similar murals had
ever been permanently preserved for display. Accordingly, it is held that
plaintiff has failed to meet her burden of demonstrating that her mural
was a "work of recognized stature," and that her VARA claim must be
dismissed as a matter of law.
B. Advertising or Promotional Material
Alternatively, the trial evidence introduced by plaintiff supports the
defendants' argument that the mural is excluded from protection under
VARA because it was "advertising" or "promotional" material and not a
work of visual art under 17 U.S.C. § 101.*fn7 Although the statute
does not define either term, it is appropriate to interpret these terms
according to their ordinary definitions. See Martin v. City of
Indianapolis, 982 F. Supp. 625, 632 (S.D.Ind. 1997) (referring to
definition of "advertise" in Webster's Dictionary to determine whether or
not a sheet metal sculpture constituted advertising material).
The American Heritage Dictionary defines "advertising" as "the act of
attracting attention to a product or business." "Promotion" is defined as
"advertising or other publicity." Considering the plaintiff's mural in
light of these definitions, it is apparent that the mural was
"promotional" in nature. The purpose of the mural was to attract public
attention and publicity to the NYSDA information table, and given
plaintiff's admission that the mural had no economic value beyond its use
at the Gideon Coalition event (by admitting that she had suffered no
economic damage from its destruction by Casey's subordinates), it is
clear that it was not intended for any purpose beyond that of promoting
the event. Therefore, it is also held that the mural was a promotional
display within the meaning of 17 U.S.C. § 101, and not a "work of
visual art" for purposes of VARA.*fn8
Accordingly, for each of the foregoing reasons, it is found that
plaintiff has failed to demonstrate that her mural, though unquestionably
of artistic merit, was a "work of recognized stature" or a "work of
visual art" within the meaning of 17 U.S.C. § 106A(a)(3)(b). Because
she failed to prove essential elements of her prima facie case,
plaintiff's complaint must be dismissed as a matter of law against
defendant Thomas E. Casey pursuant to Fed.R.Civ.P. 52(c). As noted
above, the complaint was previously dismissed against the defendant
Joseph J. Seymour.
Therefore, it is hereby
ORDERED that plaintiff's complaint is DISMISSED in its entirety.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.