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May 30, 2002


The opinion of the court was delivered by: David N. Hurd, United States District Judge.



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.

At the close of plaintiff's proof at trial, Casey moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a), on the grounds that plaintiff had failed to prove a prima facie case. Defendant also asserted 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 ...

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