On May 3, 2024, U.S. District Judge Stephen H. Locher of the Southern District of Iowa granted artist Mary Miss’s motion for a preliminary injunction to prevent the demolition or removal of her outdoor environmental artwork entitled Greenwood Pond: Double Site, which sits on the grounds of the Des Moines Art Center (the “Art Center”).[1] Artists and scholars widely recognize Greenwood Pond: Double Site as a significant work of land art.[2] The art is primarily made of wood, and has been damaged over time by environmental factors and wear and tear. While the Art Center and Ms. Miss agree that the art is in a state of extreme disrepair, they disagree as to whether to restore the piece (Ms. Miss’s position) or demolish or remove it (the Art Center’s position). Ms. Miss claims that (i) she has a contractual right to veto the artwork’s demolition or removal, and (ii) its demolition or removal would violate her rights under the Visual Artists Rights Act (VARA).[3]

The District Court granted Ms. Miss’s motion on the ground that the parties’ contract requires her consent before the Art Center can remove her artwork.[4] The Court’s decision is of interest because, in finding that Ms. Miss has “little chance of prevailing on her VARA claim,” Judge Locher concluded that Greenwood Pond: Double Site “is not really a sculpture.”[5] The Court held that the work—which “blends the natural landscape with wooden features like a boardwalk, walking path, warming hut (which resembles the interior framing of a building) and other structures,”—is “not what Congress had in mind when it granted moral rights protections to artists for their ‘sculptures.’”[6]

In reaching that conclusion, the District Court relied heavily on the Seventh Circuit’s opinion in Kelley v. Chicago Park District, 635 F.3d 290, 300 (7th Cir. 2011).[7] In that case, the Seventh Circuit interpreted “sculpture” narrowly, observing that “[t]o qualify for moral-rights protection under VARA, [a work of art] cannot just be ‘pictorial’ or ‘sculptural’ in some aspect or effect, it must actually be a ‘painting’ or a ‘sculpture.’ Not metaphorically or by analogy, but really.” The Seventh Circuit’s decision is not binding on the Southern District of Iowa (which is located in the Eighth Circuit), but Judge Locher nonetheless adopted the Seventh Circuit’s distinction between a work that has a “sculptural” aspect and a work that is a “sculpture.”[8]

Applying the Seventh Circuit’s framework, Judge Locher looked to the parties’ expert testimony—including that of Ms. Miss’s expert—to determine that Greenwood Pond: Double Site is not a sculpture, but rather merely “sculptural.” However, the parties’ experts did not address the question of whether Ms. Miss’s work is a “sculpture,” but only whether it is a “traditional sculpture” (emphasis added). Both parties’ experts answered that Greenwood Pond: Double Site is not a traditional sculpture. But VARA is not by its terms limited to “traditional sculpture”—to many or even almost all art professionals, Robert Smithson’s Spiral Jetty, Christo and Jeanne-Claude’s Running Fence and Walter De Maria’s The Lightning Field are no less “sculptures” under VARA than Michelangelo’s David. Had the parties’ experts addressed whether Greenwood Pond: Double Site is a “sculpture”— as opposed to whether it is a “traditional sculpture”—the District Court might have reached a different conclusion regarding Ms. Miss’s likelihood of prevailing on her VARA claim.[9]

The District Court’s conclusion that Greenwood Pond: Double Site is “not really a sculpture” is also noteworthy because it contradicts the terms of the parties’ agreement commissioning that artwork. In 1994, the parties entered into an “Agreement for Artistic Services,” in which the Art Center specifically commissioned the design and implementation of an “environmental sculpture.”[10] The Court’s conclusion now, thirty years later, that the work is not a real sculpture for purposes of VARA seems at odds with the parties’ understanding of the nature of the work at the time that the Art Center commissioned it and Ms. Miss created it.

As a result of the District Court’s decision, Greenwood Pond: Double Site remains in limbo. With a preliminary injunction in hand, Ms. Miss need not worry about the imminent removal or destruction of her artwork. Ms. Miss will likely have an opportunity to present new evidence (including expert testimony clarifying that Greenwood Pond: Double Site is a sculpture, even if it is not a “traditional sculpture”) and raise additional legal arguments when the court reaches the merits of her VARA claim.

However, even if she ultimately succeeds on either or both of her claims, Ms. Miss may not see her work repaired anytime soon. The same agreement that affords Ms. Miss the right to consent to removal of the work also gives the Art Center complete discretion over any refurbishment of that work. Thus, the Art Center may have an incentive to postpone any repair or renovation of the piece for as long as possible, in the hopes that doing so might persuade Ms. Miss to consent to Greenwood Pond: Double Site’s removal. On the other hand, if there is public support for refurbishing the work, that could pressure the Art Center to invest in its restoration. The deterioration of, and subsequent legal skirmish over, Greenwood Park: Double Site serves as a lesson to artists and purchasers of commissioned works: the parties should seek to contractually allocate control over maintenance, restoration and removal of artworks in a way that will avoid the stalemate that Ms. Miss and the Art Center now face.

[1] Order Granting Motion For Preliminary Injunction, Mary Miss v. Edmundson Art Found., Inc., No. 4:24-cv-00123-SHL-SBJ, 2024 BL 172224, Doc. No. 28 (S.D. Iowa May 3, 2024). 

[2] Id. at *3-*4. 

[3] As we have discussed frequently on this blog (see Second Circuit’s Decision in Kerson v. Vermont Law School May Embolden Property Owners to Conceal Contentious or Inconvenient Art and American Graffiti: Artist Moves to Protect Street Art Across New York City), VARA is an amendment to the U.S. Copyright Act intended to codify certain “moral rights” belonging to creators of “works of visual art.”  17 U.S.C. § 106A(a). Among other things, those rights include protection of certain artworks from destruction, specifically that “the author of a work of visual art . . . . shall have the right . . . to prevent any destruction of a work of recognized stature . . . . ”  Id. § 106A(c)(2).  A “work of visual art” is defined to include “a painting, drawing, print or sculpture.”  Id. § 101.  

[4] Order at *1; Pursuant to the parties’ Agreement for Artistic Services, the Art Center “agree[d] that it [would] not intentionally damage, alter, relocate, modify or change the Work without the prior written approval of the Artist.”  Id. at *2.

[5] Id. at *15.  VARA only provides protection to “work[s] of visual art” and that term is limited to works that may be classified as either “painting, drawing, print, or sculpture.”  Id. at *6.  

[6] Id. at *14.  

[7] Id.

[8] Id.

[9] Relying on the First Circuit’s decision in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 143 (1st Cir. 2006), the Art Center also argued that, even if Greenwood Pond: Double Site is a “sculpture,” VARA does not protect site-specific art.  Because the Court found that the work is likely not a sculpture within the meaning of VARA, it did not reach the issue of whether VARA protects site-specific art. Order at *17 n.2.

[10] Id. at *3.