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Tobin v. The Rector, Church-Wardens, and Vestrymen of Trinity Church, in City of New York

United States District Court, S.D. New York

November 14, 2017

STEVEN TOBIN, Plaintiff,



         Plaintiff Steven Tobin brings this action against The Rector, Church-Wardens, and Vestrymen of Trinity Church, in the City of New York (“Defendant” or “Trinity”), alleging breach of contract, promissory estoppel and violations of the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §§ 106A, 113(d). Defendant moves to dismiss the Second Amended Complaint (the “Complaint”) under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The motion is granted.

         I. BACKGROUND

         The following facts are taken from the Complaint and accompanying exhibits. See Fed. R. Civ. P. 10(c); Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 247 (2d Cir. 2017). The facts are construed, and all reasonable inferences are drawn, in favor of Plaintiff as the non-moving party. See Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).

         A. Events Prior to the Written Agreement

         Plaintiff is a visual artist based in Coopersburg, Pennsylvania and the creator of The Trinity Root, the sculpture at the center of this action. Trinity, appearing in this action through its Rector, Church-Wardens and Vestrymen, is a religious organization based in New York, New York. Trinity owns The Trinity Root, which it commissioned in 2004 and received as a charitable donation in September 2005.

         Defendant approved a sketch of the proposed sculpture that Plaintiff had prepared, depicting it in the courtyard of Trinity Church. If the sketch had not been approved, Plaintiff's commission to create the sculpture would have been terminated. The intent, spirit and design of the sculpture were specific to the site.

         The Trinity Root is “a cast bronze sculpture fifteen feet wide, twenty feet deep and thirteen feet high that weighs more than three tons.” It is a full-size reproduction of the root structure and stump of a 100-year old sycamore tree that stood in the churchyard of St. Paul's Chapel (owned by Defendant) until it was toppled during the September 11, 2001, World Trade Center attack. The sculpture's patina contains “actual DNA from victims of the attack that came to rest in soil within St. Paul's churchyard.” The sculpture is “composed of hundreds of fragile individual pieces welded together, ” and required Plaintiff and an expert team of riggers to supervise its transport from Plaintiff's studio to the churchyard. The cost to Plaintiff of creating and installing The Trinity Root was more than a million dollars. Plaintiff took out a home equity loan to cover this expense.

         B. The Parties' Written Agreement

         The parties memorialized their agreement regarding The Trinity Root in a written contract (the “Agreement”) dated August 4, 2004. As relevant here, section 6(a) of the Agreement states:

Tobin hereby transfers and assigns to Trinity by charitable donation all right, title, and interest to the Sculpture and all materials related thereto (including but not limited to all sketches, photographs and audio-visual footage), including but not limited to the copyright therein, and any cause of action that Tobin may have with respect thereto, in perpetuity throughout the universe, for use in any manner and in any media now known or hereafter invented. In the event of any termination of this Agreement, Trinity will own the Sculpture, in whatever degree of completion (including but not limited to the sketches), and will have the right to complete, exhibit and sell the Sculpture if it so chooses. Tobin grants Trinity the right to use his name, approved likeness and approved biographical information in connection with any and all exploitation of the Sculpture. Tobin understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.

(emphasis added). Section 8(d) states that the Agreement “constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended or modified by a written instrument executed by the duly authorized representatives of the parties.” The Agreement further states that it will be governed and interpreted in accordance with New York law.

         C. Events after the Agreement

         The Trinity Root was installed in the courtyard at Trinity Church, and on September 11, 2005, was dedicated in a public ceremony. During the year preceding the installation, the parties' plans to create The Trinity Root were described in numerous publications attached as exhibits to the Complaint.

         On August 9, 2004, Plaintiff's manager and communications consultant, Kathleen Rogers, submitted to CBS Sunday Morning a press release stating that The Trinity Root “will be permanently sited at the corner of Wall St. and Broadway.” Defendant reviewed and approved the press release. On July 6, 2005, The New York Times published a story stating that The Trinity Root “will be installed and dedicated near ground zero on Sept. 11, becoming the first substantial permanent memorial in the area.” Between August and September 2005, various other publications, including The Living Church (a weekly publication for Episcopalians), National Geographic Magazine and The Episcopal News Service published articles either stating or implying that The Trinity Root would be permanently sited in the churchyard. Defendant did not challenge or correct any of these statements.

         In May 2015, nearly a decade after the sculpture's installation in the courtyard of Trinity Church, Rogers, on behalf of Plaintiff, contacted Nathan Brockman, Defendant's representative, about restoring the sculpture's patina, using dirt from the St. Paul's churchyard that Tobin preserved for that purpose. Brockman informed Rogers that Trinity Church's new Rector wanted the sculpture removed and asked whether Plaintiff would take it to his studio or relocate it at Defendant's expense. During ...

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