The Boston Globe has a story today on the First Circuit decision I wrote about earlier in the week, which held that VARA does not apply to site-specific art.
The artist, David Phillips, is quoted as saying: "I'm not sure if I've helped artists or hurt artists in this battle. It was probably very naive of me to think that artist rights would prevail over real estate and power." It's certainly true that whereas, before, an artist could use the threat of suit under VARA as leverage to try to prevent the removal of a site-specific work, that threat is much less credible now.
There's one misstatement in the Globe article. The article says: "In 2004, the state's Supreme Judicial Court had ruled that the Massachusetts act did not apply to the case because the contract between Phillips and Fidelity was not recorded in the county registry of deeds." That isn't so. While there was some passing discussion of the registration requirement for works attached to buildings, the court's holding was that the Massachusetts act did not protect any site-specific artwork from removal (whether recorded in the registry of deeds or not).
Interestingly, the Massachusetts court was careful to emphasize that, while the act does not protect against "the conceptual destruction or decontextualization that may result from the removal of [the work's] components from the physical environment in which they have been placed," it does prohibit "the physical destruction of the crafted components." As I said in my previous post, the overly clever First Circuit decision, by contrast, by completely excluding site-specific art from VARA's orbit, leaves the component elements open to destruction.
