A very important decision out of the First Circuit today in Phillips v. Pembroke Real Estate, holding that the Visual Artists Rights Act doesn't apply to site-specific works.
It's an odd, hair-splitting opinion. The district court had held that the owner of the park where the work was sited could remove it pursuant to VARA's so-called "public presentation exception" ("The modification of a work of visual art which is the result of ... the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification ..."). The First Circuit today affirms the result, but doesn't think it's "sensible" to say VARA protects site-specific art yet at the same time permits its destruction by removal from its site. On its face, that's not a crazy view to take, but it seems to me the only practical difference between the two approaches is that the First Circuit's position would allow the further destruction or mutilation of the elements which made up the work (say as part of the removal process), while the district court's more cautious way of putting it would allow the removal of the work (which admittedly is, by definition, a kind of destruction) but no additional destruction or mutilation of the elements of the work (which might, for instance, allow them to be reconstituted, as a new, though related, work at a different site). It's not clear to me what the appellate court thought was to be gained by shifting the rationale (though not the result) in this way.
Professor Patry says "the result is right," but also questions the First Circuit's analysis: he says the proper way to frame the issue is whether a work of visual art protected under [VARA] is protected against removal" under the theory "that removal by itself constitutes destruction."
