The Second Circuit has affirmed the dismissal of the VARA suit over the removal of a sculpture from Trinity Church in downtown Manhattan.
In discussing the dismissal by the District Court, I said:
"The artist had the additional difficulty that he signed a contact [which said] Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses [and that the artist] understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate."
The Second Circuit noticed that too:
"Here, Tobin argues that Trinity impermissibly modified his work, in violation of VARA, when it relocated the sculpture from Trinity Church in lower Manhattan to a seminary in Connecticut. He asserts that the sculpture is site specific, and was created for its original location at Trinity Church. Thus, he argues, by moving the sculpture, Trinity has violated the integrity of the piece, However, in a written agreement signed by the parties prior to the sculpture’s installation, Tobin affirmed that Trinity 'has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.' Because either of these actions would require Trinity to physically move the sculpture, we conclude that Tobin waived any right he may have held under VARA to maintain the piece specifically at Trinity churchyard. Tobin 'expressly agree[d]' to this 'use[] of [his] work,' in conformance with the waiver requirements of VARA. 17 U.S.C. § 106A(e)(1). Accordingly, dismissal of Tobin’s claims premised on the modification resulting from the relocation of the piece was appropriate."
