We recently reported on a preliminary injunction issued in Mary Miss v. Edmundson Art Foundation, Inc., temporarily barring the Des Moines Art Center from destroying Greenwood Pond: Double Site, artist Mary Miss’s well-known outdoor environmental art installation that is in a state of substantial disrepair due to exposure to the elements and wear-and-tear from visitors walking on its pathways.[1] The U.S. District Court for the Southern District of Iowa granted the preliminary injunction on contractual grounds. In doing so, the Court noted Ms. Miss’s slim chance of prevailing on her claim that the Art Center’s demolition or removal of her artwork would violate her rights under the Visual Artists Rights Act (VARA) because, according to U.S. District Judge Stephen H. Locher, Greenwood Pond: Double Site is likely not a “sculpture” for purposes of VARA.[2] Accordingly, in this preliminary ruling the Court did not consider the Art Center’s alternative argument that Greenwood Pond: Double Site is not eligible for VARA protection because VARA does not protect site-specific art.

Judge Locher no longer has occasion to reach either issue more definitively: as reported in The New York Times, The Art Newspaper, and other news outlets, on January 14, 2025, the parties reached an agreement to settle the matter. The Art Center may remove the work, and Ms. Miss will receive $900,000—a portion of which she plans to donate to the Cultural Landscape Foundation, an education and advocacy group that led opposition to her work’s destruction.

Whether VARA protects site-specific art continues to bedevil the courts. The question remains unsettled in the Eighth Circuit, where the Southern District of Iowa is located. However, other circuits have addressed the issue. In 2006, in Philips v. Pembroke Real Estate, Inc., the First Circuit categorically held that “VARA does not protect site-specific art.”[3] Five years later, in 2011, the Seventh Circuit criticized that decision in Kelley v. Chicago Park District.[4] More recently, as previously reported on this blog, in 2023, in Kerson v. Vermont Law School, Inc., the Second Circuit noted the split between the First and Seventh Circuits, but declined to decide or discuss in any detail “whether the public presentation exception applies equally to movable and immovable art” or whether VARA applies to site-specific art at all, having found for other reasons that VARA did not protect the artist in that case (which involved a controversial mural painted on the walls of a law school building).[5]

The First Circuit: VARA Does Not Apply to Site-Specific Art at All

In Philips, artist David Philips sought an injunction under VARA, claiming the removal of 27 of his sculptures as part of a planned redesign of Boston’s Eastport Park located near Boston Harbor would violate his artistic right of integrity.[6] The U.S. District Court for the District of Massachusetts held that, although the sculptures qualified as a single integrated work of visual art, VARA’s public-presentation exception entitled the Park administrators to remove them.[7] The First Circuit affirmed, but on different grounds, holding that VARA does not apply to site-specific art “at all.”[8]

In so holding, the First Circuit relied on a perceived irreconcilable tension between the public presentation exception and the purpose of site-specific art: “By definition, site-specific art integrates its location as one of its elements. Therefore, the removal of a site-specific work from its location necessarily destroys that work of art.”[9] The public presentation exception permits modification of a work of visual art based on a change in its “public presentation, including lighting or placement,” unless caused by gross negligence.[10] If VARA applied to site-specific art, the First Circuit reasoned, then the statute would “purport[ ] to protect site-specific art” but also “permit its destruction by the application” of the public-presentation exception.[11] Thus, the court held that “VARA does not protect site-specific art and then permit its destruction by removal from its site pursuant to the statute’s public presentation exception. VARA does not apply to site-specific art at all.”[12]

The Seventh Circuit: VARA at Least Affords at Some Protection to Some Site-Specific Art

Although the Seventh Circuit in Kelley ultimately side-stepped the issue by resolving the dispute at issue on other grounds, it nonetheless raised four reasons to question the First Circuit’s interpretation of VARA in Philips:

First, the Seventh Circuit noted that the term “site-specific art” appears nowhere in the statute: “Nothing in the definition of a ‘work of visual art’ either explicitly or by implication excludes this form of art from moral-rights protection. Nor does application of the public-presentation exception operate to eliminate every type of protection VARA grants to creators of site-specific art; the exception simply narrows the scope of the statute’s protection for all qualifying works of visual art.”[13]

Second, the Seventh Circuit observed that site-specific art is not necessarily destroyed if moved, as the Philips court assumed. It might be “modified, yes, but not always utterly destroyed.”[14] That observation raises a question as to the definition of site-specific art. Is site-specific art such that it is necessarily destroyed in its entirety if it is removed from its site? As discussed above, the phrase “site-specific art” is not defined, or even mentioned, in the statute. In the art world, however, the term widely refers to “a work of art designed specifically for a particular location and that has an interrelationship with the location.”[15]

Third, the Seventh Circuit reasoned that some of VARA’s protections “are unaffected by the public-presentation exception.”[16] For instance, “[a]n artist’s right of integrity can be violated in ways that do not implicate the work’s location or manner of public presentation; site-specific art—like any other type of art—can be defaced and damaged in ways that do not relate to its public display. And the public-presentation exception does nothing to limit the right of attribution, which prevents an artist’s name from being misappropriated.”[17]

Fourth, the Seventh Circuit observed that the building exception appears on its face to cover a particular kind of site-specific art, and the presence of that exception in the statute “suggests that site-specific art is not categorically excluded from VARA.”[18] The building exception applies to works “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.”[19] As the Seventh Circuit explained, those works “do not get moral-rights protection if the artist: (1) consented to the installation of his work in the building (if pre-VARA); or (2) executed a written acknowledgment that removal of the work may subject it to destruction, distortion, mutilation, or modification (if post-VARA).”[20]

Implications for Artists and Those Commissioning Site-Specific Art

Aside from the First and Seventh Circuits, no other Court of Appeals has meaningfully addressed the question of whether VARA protects site-specific art. Although the Seventh Circuit’s observations in Kelley were non-binding dicta, its criticisms of the First Circuit’s blanket statement that VARA does not apply to site-specific art “at all” would have provided Ms. Miss with strong arguments in support of her VARA claim if she had been able to demonstrate that Greenwood Pond: Double Site is indeed a “sculpture” for purposes of VARA. On the other hand, Judge Locher, who presided over the Greenwood Pond case, relied heavily on other aspects of the Seventh Circuit’s Kelley decision[21] in reaching his preliminary conclusion that Greenwood Pond is not a sculpture for purposes of VARA. Due to Ms. Miss’s settlement with the Art Center, the tension between the First and Seventh Circuits’ interpretations remains unresolved and the scope of VARA remains uncertain in most jurisdictions.

Site-specific art, by its nature, tends to implicate the competing interests of the public, the private owner, and the artist in ways that other forms of visual art may not. Thus, whether the First Circuit’s holding in Philips is legally correct, VARA in its current form may not be sufficiently tailored to the unique issues pertaining to site-specific artists and their works. New legislation that clarifies the applicability of VARA or provides separate rights for creators of site-specific works that are better tailored to the particular features of those works may benefit site-specific artists and those commissioning site-specific art. In France, where artists’ moral rights are more robust and firmly entrenched, the artist’s “droit au respect de l’oeuvre” can sometimes extend to the site where a work is located. For instance, France’s century-old moral rights statute and related case law provide artists the right to oppose a modification of their work, so the artist’s consent is needed to relocate a site-specific work.[22]

In the meantime, given the current uncertainty of VARA’s application to site-specific art in most jurisdictions, artists and those commissioning site-specific art should take care to negotiate commission agreements that clearly articulate the parties’ respective rights, and the specific instances when modifying, removing, moving or destroying the artwork—and the site where the work is located—may be permitted.

[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 *15.
[3] 459 F. 3d 128, 143 (1st Cir. 2006).
[4] 635 F.3d 290, 306–07 (7th Cir. 2011).
[5] 79 F.4th 257, 269 (2d Cir. 2023).
[6] Philips, at 130-31.
[7] Id. at 138–39.
[8] Id. at 143.
[9] Id. at 140.
[10] 17 U.S.C. § 106A(c)(2)
[11] Philips, at 140.
[12] Id. at 143.
[13] Kelley, 635 F.3d at 306.
[14] Id. at 307.
[15] Art Term: Site-Specific, Tate, https://www.tate.org.uk/art/art-terms/s/site-specific.
[16] Kelley at 307.
[17] Id.
[18] Id.
[19] 17 U.S.C. § 113(d)(1)(A).
[20] Id. § 113(d)(1)(B).
[21] In particular, Judge Locher relied on the Seventh Circuit’s conclusion 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.” Order at *14 (quoting Kelley at 300).
[22] Règlementation et bonnes pratiques, MINISTÈRE DE LA CULTURE, https://www.culture.gouv.fr/Thematiques/arts-plastiques/commande-artistique/1-immeuble-1-aeuvre/reglementation-et-bonnes-pratiques