‘One’ is a beginning and ‘two’ is forever, at least according to Lonny Marrow, an artist known as Phase 2, whose work Misconception of the A until recently decorated the Jacob Javits Convention Center in New York. The work is nowhere to be found, hence the following suit.
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According to the facts alleged in a complaint filed in New York Federal District Court (S.D.N.Y.) on November 6, 2013, plaintiff, Lonny Marrow’s sculpture was “disposed” of after remaining in the Jacob Javits Convention Center (the “Javits Center”) for over twenty years. Marrow entered into a verbal agreement with defendant, Douglas Abdell sometime in 1983 to collaborate on a sculpture entitled, Misconception of the A. The two agreed to do so at the suggestion of a gallery owner, Joe LaPlaca, who represented both artists at the time. The sculpture was completed at some point in 1984 and was exhibited at the Gallozzi-LaPlaca Gallery from 1984 until 1988. According to the complaint, LaPlaca funded the construction of the sculpture entitling him to a proportionate interest in the profit of the sculpture should it ever be sold. Subsequently, in 1988, LaPlaca transferred his ownership interest of the sculpture back to Marrow, through an oral and written agreement, in order to satisfy an outstanding debt he had with Marrow.
Shortly after, one of the co-defendants, Hugo Martinez, was assigned the right to sell the piece, as well as receive a twenty-five percent commission. He had the sculpture moved to the Jacob Javits Convention Center in 1988 where it remained on permanent display for over twenty years. Marrow understood the piece to be on loan to the Javits Center. Throughout that time, Marrow regularly invited collectors and friends to the Javits Center to see the piece. Around July 2013, Marrow’s friend, Ronnie Yarboro, wished to see the sculpture and called the Javits Center to make sure it was on display. The Javits Center’s operations manager, Carola Henderson, informed Yarboro that the sculpture had been moved six months prior due to renovations. When Marrow became aware of this, his counsel contacted the Javits Center regarding the sculpture’s whereabouts. In response, counsel for the Javits Center advised Marrow’s counsel that they had “disposed” of the sculpture because Marrow’s ownership interest was forfeited through abandonment.[i]
Marrow commenced an action seeking (1) a declaratory judgment as to his ownership interest in the sculpture to be at fifty-two and a half percent pursuant to the written agreement between Marrow, Abdell and Martinez, (2) declaratory judgment as to his fifty-two and a half percent co-ownership interest of all copyrights in and to the sculpture, (3) conversion for wrongful deprivation of his property seeking damages for $250,000, and (4) violation of his rights under the Visual Artists Rights Act (“VARA”).[ii]
Claims made under the VARA are particularly interesting. VARA provides for greater copyright protections to artists. However, it only covers “visual art”, defined under 17 USC § 101 as “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer . . . or a still photographic image produced for exhibition purposes only, existing in a single copy . . . or in a limited edition of 200 copies or fewer.” VARA gives the author of these works certain exclusive rights even once the author has transferred his property interest in the piece. These rights include the § 106A (a) right of attribution (the right to have author’s name credited with his work and the right to not have the author’s name associated with a work he did not create) and the § 106A (a) right of integrity (the author’s right to prevent distortion, mutilation or other modification of a visual work that would prejudice the author’s reputation and the right to prevent any intentional or grossly negligent destruction of a work of recognized stature).[iii]
An important distinction to note is the difference between works made for hire which are not protected under VARA and works created by independent contractors which are afforded protection under VARA. (See Carter v. Helmsley-Spear, 71 F.3d 77 (2d. Cir. 1995) (holding that a multifactor balancing test is necessary to determine whether a work is a work for hire or independently contracted)). In Carter, the 2nd Circuit looked to “the right to control the manner and means of production; requisite skill; provision of employee benefits; tax treatment of the hired party; [and] whether the hired party may be assigned additional projects.”[iv] Here, from looking at the complaint, it appears that Marrow’s artistic freedom was not constrained in any way, a factor that militates towards categorizing the piece as independently contracted. Marrow was an artist with great skill, suggesting the work is independently contracted. Nothing in the complaint speaks to any employee benefits or Marrow’s tax treatment. There is nothing in the complaint to suggest that this was anything more than a singular piece executed at the suggestion of LaPlace and funded by him, furthermore LaPlaca did not intend to hold onto the rights of the statue (any interest LaPlaca had was expressly assigned to Marrow pursuant to the 1988 written agreement). Therefore it is likely that the work is independently contracted and entitled to VARA protection.
As for the Javits Center abandonment defense, even if the Marrow is deemed to have “abandoned” the sculpture, he is still entitled to protection under VARA (unless he expressly waived it). The question in this case will hinge on the Marrow’s right of integrity. Since it is unclear from the complaint what exactly happened to the sculpture, evidence will need to come out at trial that shows the defendant destroyed or otherwise mutilated the work in a way that prejudiced his reputation. A note from the legal counsel for the Javits Center dated September 6, 2013, included in the complaint, states without much detail that the Javits Center “had no choice but to dispose of [the sculpture]”. If this is the case, Marrow is likely to succeed on his VARA claim. On the other hand, there seems to be little question of whether or not the statue is a work of “recognized stature”, which requires determining whether the artist is, among many other factors, well-known, highly acclaimed by experts in the field, and possess artistic merit. Better known as Phase 2, Marrow is a founding father of the graffiti movement, and therefore is likely to posses the necessary attributes to prevail in his suit.
[i] Complaint: Lonny Marrow v. Jacob Javits Center, et al. (S.D.N.Y. 2013) (No. 13 Civ. 7902).
[ii] Id., 17 U.S.C. 106A.
[iii] 17 U.S.C. 106A.
[iv] Carter v. Helmsley-Spear, 71 F.3d 77, 86 (2d Cir. 1995) (quoting Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir. 1992)).