A case pending in the Western District of Pennsylvania should provide the opportunity for a federal judge to clarify the pleading requirements for the “recognized stature” element of a VARA claim.

In April 2018, street artist Kyle Holbrook and two arts organizations that he founded brought VARA claims against forty-four defendants, including the City of Pittsburgh, in the federal court for the Western District of Pennsylvania, alleging that the defendants had mutilated and destroyed murals that Holbrook created and that his organizations installed in and around Pittsburgh.[1]  After the plaintiffs voluntarily dismissed their claims against twenty-four of those defendants, fifteen of the twenty remaining defendants filed motions to dismiss.  On February 11, 2019, Magistrate Judge Robert C. Mitchell recommended that those motions to dismiss be denied in large part; several of the moving defendants have filed objections to that ruling.[2]  The matter is now before District Judge Peter J. Phipps, who may now accept, reject or modify the recommended disposition, receive further evidence, or resubmit the matter to Magistrate Judge Mitchell with instructions.[3]

As previously covered on this blog, the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (“VARA”), establishes a cause of action for visual artists seeking to preserve their works of art after they are sold or installed.  Under VARA, an artist has the right to prevent the destruction of certain types of visual art of “recognized stature” – a term that is not defined in the statute.  Courts in the Second and Seventh Circuits have concluded that an artist seeking protection under VARA must show that (1) the work at issue has artistic merit and that (2) it has been recognized as having such merit by members of the public or the art community.  See Cohen v. G & M Realty L.P., 320 F. Supp. 3d 421, 437 (E.D.N.Y. 2018); Scott v. Dixon, 309 F. Supp. 2d 395, 400 (E.D.N.Y. 2004) (citing Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 97–98 (D. Mass. 2003); Martin v. City of Indianapolis, 982 F. Supp. 625, 631 (S.D. Ind. 1997)); Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994), aff’d in part, vacated in part, rev’d in part, 71 F.3d 77 (2d Cir. 1995).  However, courts have only required such proof at an advanced stage of the case, to defeat a motion for summary judgment after discovery or at trial.  See Scott, 309 F. Supp. 2d at 400 (“The stature of a work of art is generally established through expert testimony.”).

Here, Holbrook claims that he raised funds to support a team of artists who installed his murals in and around Pittsburgh as part of a larger effort to beautify inner-city neighborhoods in collaboration with Pittsburgh’s Hill House Association, a community non-profit organization.[4]  He alleges that the murals were approved by the defendant property owners, including Allegheny County, municipal agencies (the Port Authority of Allegheny County, the Housing Authority of the City of Pittsburgh, and Pennsylvania Department of Transportation, among others), and private corporations (Norfolk Southern Railway, Mosites Construction, KBK Enterprises, and McCormack Baron Salazar, among others).[5]  Holbrook also implies that he installed the works with those property owners’ permission that the works exist indefinitely, and asserts that the murals were “of recognized stature” under VARA because he is a prominent artist who has exhibited in numerous galleries and shows.[6]

The moving defendants seek dismissal on the ground that plaintiffs have not pleaded any facts to support their assertion that Holbrook’s works are “of recognized stature.”[7]  In particular, defendant Mistick Construction points out that the key allegation on which plaintiffs’ VARA claim rests – that “[Holbrook’s] work was recognized as having stature by one or more experts, the art community and/or the general public” – is wholly conclusory, without any facts alleged to support it. [8]  Nevertheless, Magistrate Judge Mitchell, in recommending denial of the motions to dismiss as to Holbrook, notes that the cases that the defendants cite in support of their argument for dismissal were decided at a more advanced stage – i.e., after trial or injunction hearings – and thus are inapposite.[9]  Applying the standard that the plaintiff’s allegations on a motion to dismiss must be accepted as true, Magistrate Judge Mitchell concluded that the plaintiffs’ assertion that the works were of “recognized stature” was sufficient, even in the absence of any pleaded facts supporting the conclusion that the works at issue were recognized as having artistic merit by the public or the art community.[10]

Following entry of Judge Mitchell’s report recommending denial of their motions to dismiss, seven of the moving defendants filed objections re-asserting the argument that Holbrook had not sufficiently alleged facts supporting the claim that the murals at issue were works “of recognized stature.”[11]  In response, Holbrook again argued that a VARA plaintiff is not required to prove recognized stature at the pleading stage.[12]  Assuming that the district court determines that these objections are procedurally proper, it will review this issue de novo.[13]

Requiring that an artist allege facts supporting his or her claim of recognized stature at the pleading stage, as suggested by the moving defendants, would raise the bar for pleading a destruction-of-art claim under VARA.[14]  While a higher pleading threshold could help to prevent nuisance lawsuits and protect legitimate interests of property owners, it could also preclude valid claims by artists who seek to preserve their artworks but are unable to allege facts at the beginning of their lawsuit that, if proven at trial, would show that their works have been recognized by the public or the art community to have “stature.”  See Cohen, 320 F. Supp. 3d at 438 (quoting Christopher J. Robinson, The “Recognized Stature” Standard in the Visual Artists Rights Act, 68 Fordham L. Rev 1935, 1968 (2000)).  That could undercut the main objective of VARA: addressing Congress’s concern that “the destruction of works of art represent[s] a significant societal loss.”  Carter, 861 F. Supp. at 324; see also id. (“VARA creates a comprehensive scheme, duly enacted by Congress, to protect and ensure the preservation of certain types of art work so as to advance the public interest and protect artists’ moral rights.”).  It will be interesting to see how Judge Phipps’s decision balances the artist-protective purpose of VARA against the public-policy interest of discouraging frivolous lawsuits.

[1] See Amended Complaint at 9, Holbrook v. City of Pittsburgh, No. 2:18-cv-00539-RCM (W.D. Pa. May 9, 2018) (Dkt. No. 4) (hereinafter “Am. Compl.”).

[2] Report and Recommendation at 1-2, Holbrook, No. 2:18-cv-00539-RCM (Feb. 11, 2019) (Dkt. No. 184) (hereinafter “Report”).  The plaintiffs also alleged breach of contract and property damage claims under Pennsylvania law.  Am. Compl. at 25.  The magistrate judge recommended that the property damage claims be dismissed, on the basis that Pennsylvania law does not recognize a cause of action for “property damage” per se.  Report at 16-17.  However, the judge recommended denial of the defendants’ motions to dismiss the plaintiffs’ breach of contract claims.  Report at 1.

[3] See Fed. R. Civ. P. 72.

[4] See Am. Compl. at 2.

[5] Am. Compl. at 2.  Holbrook claims to have raised the funds through the two art organization co-plaintiffs, K H Design LLC and MLK Mural.  Id.

[6] Am. Compl. at 11 (“Plaintiffs’ work of visual art was installed without any fixed period of duration and was intended to last indefinitely.”).

[7] See, e.g., Mistick Mem. Supp. Mot. Dismiss Am. Compl. at 6-8 (Dkt. No. 108) (hereinafter “Mistick Mem.”); City of Pittsburgh’s Br. Supp. Mot. Dismiss at 4-5 (Dkt. No. 152).

[8] Mistick Mem. at 7.

[9] Report at 11-12.  Judge Mitchell recommended granting dismissal of the VARA claim as to the two corporate plaintiffs, on the basis that “only a natural person can be an ‘author of a work of visual art’” eligible for relief under VARA.  Id. at 10-11.

[10] Report at 12.  The complaint stated in full: “Plaintiffs’ work of visual art was a work of recognized stature. Plaintiff Holbrook is a prominent artist who has exhibited in numerous galleries and shows, and has been the subject of innumerable news articles and television interviews and his work was recognized as having stature by one or more experts, the art community and/or the general public.”  Am. Compl. at 12.

[11] See, e.g., City of Pittsburgh’s Objs. R. & R. on Mot. Dismiss at 3-4 (Dkt. No. 187); Mistick Construction Defs. Objs. R. & R. on Mot. Dismiss at 5-6 (Dkt. No. 188); Mosite’s Objs. R. & R. (Dkt. No. 191).

[12] See Resp. of Pls. to Objs. of City of Pittsburgh R. & R. on Mot. Dismiss (Dkt. No. 194).

[13] See Fed. R. Civ. P. 72(b)(3).

[14] The Second Circuit and the Seventh Circuit have noted that a plaintiff need not provide expert testimony to establish that the work is recognized as “meritorious” by the art expert herself or by “some cross-section of society” at the trial stageCohen, 320 F. Supp. 3d at 437-38 (quoting Carter, 861 F. Supp. at 325); see Martin, 192 F.3d at 612 (affirming the district court’s finding that the plaintiff’s sculpture was of recognized stature, based on newspaper and magazine articles, letters from an art gallery director and a letter to a newspaper editor in support of the sculpture).