United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, DISTRICT JUDGE.
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.
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).
Events Prior to the Written Agreement
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.
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.
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.
The Parties' Written Agreement
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
(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.
Events after the Agreement
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
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.
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 ...