The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION AND ORDER
On June 14, 1999, plaintiff Joanne Pollara ("Pollara" or "plaintiff")
commenced the instant action against defendants Joseph J. Seymour
("Seymour") and Thomas E. Casey ("Casey" or "defendant") (collectively,
"defendants") pursuant to the Visual Artists Rights Act,
17 U.S.C. § 106A ("VARA"), and 42 U.S.C. § 1983. She alleges that
the defendants destroyed a mural that she had painted, and that the mural
constituted a "work of visual art" and a "work of recognized stature"
within the meaning of VARA. On December 21, 2000, defendants moved for
summary judgment. The motion was granted on July 18, 2001, as to
Seymour, but denied as to Casey. See Pollara v. Seymour, 150 F. Supp.2d 393
(N.D.N Y 2001).*fn1
Pollara's VARA claim against Casey was tried to the bench on October
17, 2001, in Utica, New York. Having reviewed all of the testimony and
the exhibits received into evidence, the findings of fact and conclusions
of law are set forth pursuant to Federal Rule of Civil Procedure 52(a).
As discussed below, because it is held that plaintiff failed to meet her
burden of demonstrating that the mural at issue constituted a "work of
recognized stature," or a "work of visual art," judgment as a matter of
law will be entered in favor of the defendant pursuant to Federal Rule of
Civil Procedure 52(c).
Pollara is an artist in Albany, New York, doing business as "Joanne
Pollara Creates." She frequently paints for hire, and has often been
asked to create banners and other installations for bar mitzvahs,
demonstrations, corporations, and others in the Albany area. In 1999, she
was hired by a public interest group, the New York State Defenders
Association ("NYSDA"), to create the painting for a Gideon Coalition*fn2
protest against funding cuts for legal aid. NYSDA feared the cuts would
result in a denial of the right to counsel for the poor. This painting
was to be displayed at the Empire State Plaza in Albany, New York
("ESP"), as part of the Gideon Coalition's annual lobbying effort at the
New York State Capital. Plaintiff had created similar installations for
display at ESP in prior years.
The mural was visually appealing and demonstrated a great deal of
artistic ability and creativity. It was produced through the expenditure
of a great deal of care and effort by Pollara. It took over 100 hours to
create. The mural was also effective at conveying the Gideon Coalition
message regarding the effect of the proposed state budget upon the
provision of indigent legal services in New York. She received $1800 for
her efforts in creating the mural.
Plaintiff normally creates displays that are specific to a particular
event. They are intended to be displayed on a one-time, short-term
basis. She does not create permanent installations. The mural at issue,
like other works created by her, was intended to be a "single use" piece
that would be used as the backdrop for the NYSDA information table at the
Gideon Coalition event. It had no intended use other than its use as a
backdrop for the information table. It would not have been placed on
public display for any future events.
After business hours on March 15, 1999, Pollara installed the painting
at ESP without a permit, but with the assumption that NYSDA had obtained
the necessary permission for her to do so. Casey is the Plaza Manager at
ESP for the New York State Office of General Services ("OGS"). He was
responsible for ordering and supervising the removal of Pollara's
painting by OGS employees. During the evening after she installed the
mural, but before it had been viewed by the public, it was removed from
its frame by OGS employees, who were under his supervision. It was torn
and severely damaged in the process.
The mural was ripped into three sections. There were two long, vertical
rips that ran through the width of the mural. The rips were repaired and
the mural taped to a wall for display at the event.*fn3 The mural was
ripped through the carelessness of OGS employees.*fn4 Following the
event, the damaged mural was returned to Pollara. She kept it in her
studio, unrolling it once to be photographed by a local newspaper. When
displayed in court, it was crumpled and clearly had sustained damage.
Pollara suffered no form of financial or professional injury in
connection with the destruction of her mural.