Phillips v. Pembroke Real Estate

Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006)

PL/artist was a sculptor that Pembroke hired to do work for a park that they had redesigned. Phillips was commissioned by Pembroke to create 27 sculptures in a Boston park. Pembroke later decided to redesign the park, which would remove or relocate almost all of Phillips' work.

The lower court found that VARA applied to Phillip’s site-specific sculptures. But the court held that the art could be moved under VARA’s “public presentation exception” so long as the pieces were not altered, modified, or destroyed in the process. The court was dealing not just with VARA, but also with the Massachusetts Art Preservation Act. There was no preemption.

Whether VARA applies to integrated or "site-specific art."

The First Circuit held that removal of Phillips' site-specific sculptures was permissible under VARA.

VARA prohibits any intentional distortion, mutilation, or modification of a work that is prejudicial to an artist’s honor or reputation. There is a public presentation exception when the modification “is the result of conservation, or of the public presentation, including lighting and placement, of the work.” The First Circuit determined that VARA could not both apply to site-specific art and also allow for its destruction under the exception. Court reasoned that VARA would either apply to site-specific art, and therefore protect it, or not apply to site-specific work. The court concluded that the public presentation exception applies only to works of art that may be moved without being destroyed. VARA would not apply here to Phillips' site-specific art.
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