VARA, Back to the Rescue of Public Art in NYC

By Irina Tarsis, Esq.

Case Preview: Johnson’s Paintings Go Missing from Empire State Building

Between 1999 and 2000, a New York artist Kysa Johnson was commissioned to create and loan a series of art works for display at the Empire State Building. The six works that used to adorn the concourse level of the historic skyscraper apparently “represented the atomic or molecular structure of the materials — brick, steel, cement, aluminum — used in the skyscraper’s construction.” Now, 14 years later, Johnson’s paintings have disappeared from display and are presumed destroyed.

Blow up 250, by Kysa Johnson

Blow up 250, by Kysa Johnson (Halsey McKay Gallery)

Having learned that the paintings went missing, Johnson, currently exhibited at the Halsey McKay Gallery through March 1, 2014, brought a copyright infringement suit against the current owners of Empire State Building alleging violation of her moral rights, under the 1990 Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. This section of the Copyright Law deals with artists’ rights of attribution and integrity of their works. It was designed “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [artist’s] honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right” (emphasis added).

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Johnson Complaint Exhibit, “blow up 12 – aluminum”

Johnson filed a complaint against the current owner of Empire State Building alleging “intentional or grossly negligent destruction of the paintings” which damages “her honor and reputation as an artist.” She seeks damages for “the destruction of the significant and important works of art that were her property.” Johnson asserts that her paintings, “blow up 8 – subatomic decay patterns,” “blow up 9 – the formation of steel” “blow up 10 – cement” and others are of recognized stature because they were shown at an “opening party” attended by a hundred of visitors in September 2000 and they have been subsequently enjoyed by the countless Empire State Building visitors.

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Johnson Complaint Exhibit – “blow up 13 – bricks”

Johnson is represented by Andrew N. Bourne. She is seeking compensatory and consequential damages.

Source: New York Times; Complaint, Johnson v. Empire State Realty Trust, Inc, 1:14-cv-00487-PAC (Jan. 27, 2014)

Roseman’s “Curtain Wall” might  come down at J.F.K. Airport

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In 2001, John F. Kennedy Airport (the Airport) unveiled its newest art installation, the “Curtain Wall” by Harry Roseman. Made up of 50+ sculptures depicting clouds or curtains, the installation was located in Terminal 4, where it has been greeting travelers for 13 years. Now the airport is considering renovations of the corridor that displays “Curtain Wall” and once the installation is taken down, there may be no room for it in the renovated space.

Apparently Roseman has been offered to take his work back but he would rather have “Curtain Wall” remain on display at the Airport. This situation, still in its development stages, brings to mind another artist’s successful efforts to protect her sculpture from removal from Terminal 1 at the John F. Kennedy. Having brought a case against the Terminal One Group Association under VARA, Alice Aycock was able to keep her “Star Sifter” in the reconfigured space and on display.

Source: New York Times; Aycock et al v. Terminal One Group Association, L.P. et al, 12-cv-03173-RWS, (SDNY, March 11, 2013).

About the Author: 

Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law.  She may be reached at itsartlaw@gmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

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