Carter v. Helmsley-Spear, Inc.
| Decision Date | 01 December 1995 |
| Docket Number | D,Nos. 1269,HELMSLEY-SPEA,INC,1549,s. 1269 |
| Citation | 71 F.3d 77 |
| Parties | , 37 U.S.P.Q.2d 1020 John CARTER, John Swing and John Veronis, Plaintiffs-Counter-Claim-Defendants-Appellees- Cross-Appellants, v.and 474431 Associates, Defendants-Counter-Claimants-Appellants-Cross-Appellees. ockets 94-7990, 94-9038. |
| Court | U.S. Court of Appeals — Second Circuit |
Adrian Zuckerman, New York City (Robert C. Boneberg, Jill Rosenthal, Davidoff & Malito, New York City, of counsel), for Defendants-Counter-Claimants-Appellants-Cross-Appellees.
Charles Lozow, New York City (Daniel H. Weiner, John J. McGreevy, Patrick T. Perkins, Hughes Hubbard & Reed, New York City, of counsel), for Plaintiffs-Counter-Claim-Defendants-Appellees-Cross-Appellants.
Richard A. Altman, New York City, for Plaintiffs-Counter-Claim-Defendants-Appellees-Cross-Appellants.
Edward N. Costikyan, New York City (David Nissenbaum, The Municipal Art Society of New York, Inc., New York City, of counsel), filed a brief on behalf of The Municipal Art Society of New York, Inc. as Amicus Curiae.
Eli R. Mattioli, New York City (Robert C. Buff, Douglas D. Aronin, Wien, Malkin & Bettex, New York City, of counsel), filed a brief on behalf of The Real Estate Board of New York, Inc. as Amicus Curiae.
Roger L. Zissu, New York City (James D. Silberstein, Weiss Dawid Fross Zelnick & Lehrman, P.C., New York City, of counsel), filed a brief on behalf of Volunteer Lawyers for the Arts as Amicus Curiae.
Before: MESKILL, CARDAMONE, and ALTIMARI, Circuit Judges.
Defendants 474431 Associates and Helmsley-Spear, Inc. (defendants or appellants), as the owner and managing agent respectively, of a commercial building in Queens, New York, appeal from an order of the United States District Court for the Southern District of New York (Edelstein, J.), entered on September 6, 1994 following a bench trial. The order granted plaintiffs, who are three artists, a permanent injunction that enjoined defendants from removing, modifying or destroying a work of visual art that had been installed in defendants' building by plaintiffs-artists commissioned by a former tenant to install the work. See Carter v. Helmsley-Spear, Inc., 861 F.Supp. 303 (S.D.N.Y.1994). Defendants also appeal from the dismissal by the trial court of their counterclaim for waste. Plaintiffs cross-appeal from the dismissal On this appeal we deal with an Act of Congress that protects the rights of artists to preserve their works. One of America's most insightful thinkers observed that a country is not truly civilized "where the arts, such as they have, are all imported, having no indigenous life." 7 Works of Ralph Waldo Emerson, Society and Solitude, Chapt. II Civilization 34 (AMS. ed. 1968). From such reflection it follows that American artists are to be encouraged by laws that protect their works. Although Congress in the statute before us did just that, it did not mandate the preservation of art at all costs and without due regard for the rights of others.
of their cause of action for tortious interference with contractual relations and from the denial of their requests to complete the work and for an award of attorney's fees and costs.
For the reasons that follow, we reverse and vacate the grant of injunctive relief to plaintiffs and affirm the dismissal by the district court of plaintiffs' other claims and its dismissal of defendants' counterclaim for waste.
Defendant 474431 Associates (Associates) is the owner of a mixed use commercial building located at 47-44 31st Street, Queens, New York, which it has owned since 1978. Associates is a New York general partnership. The general partners are Alvin Schwartz and Supervisory Management Corp., a wholly-owned subsidiary of Helmsley Enterprises, Inc. Defendant Helmsley-Spear, Inc. is the current managing agent of the property for Associates.
On February 1, 1990 Associates entered into a 48-year net lease, leasing the building to 47-44 31st Street Associates, L.P. (Limited Partnership), a Delaware limited partnership. From February 1, 1990 until June 1993, Irwin Cohen or an entity under his control was the general partner of the Limited Partnership, and managed the property through Cohen's SIG Management Company (SIG). Corporate Life Insurance Company (Corporate Life) was a limited partner in the Limited Partnership. In June 1993 SIG ceased its involvement with the property and Corporate Life, through an entity controlled by it, became the general partner of the Limited Partnership. The property was then managed by the Limited Partnership, through Theodore Nering, a Corporate Life representative. See 861 F.Supp. at 312. There is no relationship, other than the lease, between Associates, the lessor, and the Limited Partnership, the lessee.
Plaintiffs John Carter, John Swing and John Veronis (artists or plaintiffs) are professional sculptors who work together and are known collectively as the "Three-J's" or "Jx3." On December 16, 1991 SIG entered into a one-year agreement with the plaintiffs "engag[ing] and hir[ing] the Artists ... to design, create and install sculpture and other permanent installations" in the building, primarily the lobby. Under the agreement plaintiffs had "full authority in design, color and style," and SIG retained authority to direct the location and installation of the artwork within the building. The artists were to retain copyrights to their work and SIG was to receive 50 percent of any proceeds from its exploitation. On January 20, 1993 SIG and the artists signed an agreement extending the duration of their commission for an additional year. When Corporate Life became a general partner of the Limited Partnership, the Limited Partnership assumed the agreement with plaintiffs and in December 1993 again extended the agreement.
The artwork that is the subject of this litigation is a very large "walk-through sculpture" occupying most, but not all, of the building's lobby. The artwork consists of a variety of sculptural elements constructed from recycled materials, much of it metal, affixed to the walls and ceiling, and a vast mosaic made from pieces of recycled glass embedded in the floor and walls. Elements of the work include a giant hand fashioned from an old school bus, a face made of automobile parts, and a number of interactive components. These assorted elements make up a theme relating to environmental concerns and the significance of recycling.
The Limited Partnership's lease on the building was terminated on March 31, 1994.
It filed for bankruptcy one week later. The property was surrendered to defendant Associates on April 6, 1994 and defendant Helmsley-Spear, Inc. took over management of the property. Representatives of defendants informed the artists that they could no longer continue to install artwork at the property, and instead had to vacate the building. These representatives also made statements indicating that defendants intended to remove the artwork already in place in the building's lobby.
As a result of defendants' actions, artists commenced this litigation. On April 26, 1994 the district court issued a temporary restraining order enjoining defendants from taking any action to alter, deface, modify or mutilate the artwork installed in the building. In May 1994 a hearing was held on whether a preliminary injunction should issue. The district court subsequently granted a preliminary injunction enjoining defendants from removing the artwork pending the resolution of the instant litigation. See Carter v. Helmsley-Spear, Inc., 852 F.Supp. 228 (S.D.N.Y.1994).
A bench trial was subsequently held in June and July 1994, at the conclusion of which the trial court granted the artists the permanent injunction prohibiting defendants from distorting, mutilating, modifying, destroying and removing plaintiffs' artwork. Carter v. Helmsley-Spear, Inc., 861 F.Supp. 303, 337 (S.D.N.Y.1994). The injunction is to remain in effect for the lifetimes of the three plaintiffs. Plaintiffs' other claims, including their cause of action for tortious interference and a request for an award of costs and attorney's fees and that they be allowed to continue to add to the artwork in the lobby, as well as defendants' counterclaim for waste, were all dismissed with prejudice. This appeal and cross-appeal followed.
Because it was under the rubric of the Visual Artists Rights Act of 1990 that plaintiffs obtained injunctive relief in the district court, we must explore, at least in part, the contours of that Act. In doing so it is necessary to review briefly the concept of artists' moral rights and the history and development of those rights in American jurisprudence, which led up to passage of the statute we must now examine.
The term "moral rights" has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved. See Ralph E. Lerner & Judith Bresler, Art Law 417 (1989) (Art Law ). Because they are personal to the artist, moral rights exist independently of an artist's copyright in his or her work. See, e.g., 2 Nimmer on Copyright 8D-4 & n. 2 (1994) (Nimmer ).
While the rubric of moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence: attribution and integrity. See Art Law at 420. The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author's work from being...
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