Fields v. Baseline Props., LLC
| Decision Date | 23 June 2021 |
| Docket Number | Case No. CIV-19-864-D |
| Parties | YATIKA STARR FIELDS, Plaintiff, v. BASELINE PROPERTIES, LLC, and JOHN RICHERT, Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Before the Court is Defendants' Second Motion for Summary Judgment [Doc. No. 95]. Plaintiff filed a response in opposition [Doc. No. 97], and Defendants filed a reply [Doc. No. 98]. The matter is fully briefed and at issue.
Plaintiff seeks statutory damages under the Visual Artists Rights Act ("VARA"), asserting that Defendants destroyed the mural ("1219 Mural") he created by painting over it. See 17 U.S.C. § 106A(a). Defendants move for summary judgment on the grounds that Plaintiff waived his VARA rights by signing a written document at the time of the mural's creation, and that the mural was subject to the building exception under VARA.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting FED. R. CIV. P. 56(a)). A dispute is genuine "if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way," and it is material "if under the substantive law it is essential to the proper disposition of the claim." Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). At the summary judgment stage, the Court views the facts and all reasonable inferences in the light most favorable to the nonmoving party. Williams v. FedEx Corp. Services, 849 F.3d 889, 896 (10th Cir. 2017).
"The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets that burden, the nonmovant must "go beyond the pleadings and 'set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671; see also FED. R. CIV. P. 56(c)(1)(A). To accomplish this, the nonmovant must identify facts by reference to the pleadings, depositions, other discovery materials, exhibits, or affidavits. See Id. The Court is not limited to the cited materials, but rather may consider other materials in the record. FED. R. CIV. P. 56(c)(3). The Court's inquiry is whether the facts and evidence of record present "a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Unsupported conclusory allegations are not sufficient to defeat summary judgment. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).
In August 2014, a committee known as the 1219 Creative issued a Call-for-Mural-Artists to have a mural painted on the building at 1219 and 1221 N. Classen Boulevard in Oklahoma City. Plaintiff began painting the 1219 Mural in October 2014, and finished it in November 2014. The 1219 Mural is a work of recognized visual art by a recognized muralist.
In 2017, Defendant Baseline Properties, LLC ("Baseline"), purchased 1219 N. Classen. In 2018, Baseline purchased the building at 1221 N. Classen. In September 2018, Defendants, as the persons in possession and control of the building, authorized the 1219 Mural to be painted over.
Prior to creating the 1219 Mural, as a requirement of the permitting and approval process with the City of Oklahoma City ("the City"), Plaintiff executed a document titled "General VARA Waiver for Works of Visual Art (Mural)" ("Waiver"). In the Waiver, Plaintiff acknowledges his rights of attribution and integrity to the 1219 Mural conferred by 17 U.S.C. § 106A(a), and that his work of art will be subject to the rigors of Oklahoma weather. Plaintiff confirmed at his deposition that when he executed the Waiver he handwrote the name of the mural as "TBD." Plaintiff also acknowledges in the Waiver that the mural "may be destroyed, either by weather or by a necessity otherwise occasioned,which requires its removal from the building." [Doc. No. 95-1]. Additionally, the Waiver states that Plaintiff "waives his VARA rights with respect to the uses specified below by the neighborhood or district association and [the City] or anyone duly authorized by [the City.]" Id. The Waiver describes uses as "artistic enhancement of a structure in the neighborhood or district association." Id.
Kyle Golding, principal of 1219 Creative, and Plaintiff corresponded by email about the Waiver. Plaintiff emailed the signed Waiver to Golding on November 14, 2014. Golding testified in his deposition that Plaintiff signed the Waiver and returned it to him, and Golding included the signed Waiver in the application materials to the City. Also included in the application packet was an Application for Arts Commission Approval dated November 6, 2014, signed by the then-owner of the building, J.B. Askins, and Rick Bewley. A Sign Permit Application dated November 17, 2014 was also among the application materials. It was signed by Rick Bewley, owner of Art Fusion Studio on Western Avenue in Oklahoma City and a member of 1219 Creative.
The Application for Arts Commission Approval states above Askins' signature that "[a]ny agreement made by the applicant regarding this proposal will be binding upon me." [Doc. No. 95-4 at 9]. Rick Bewley is listed as the applicant.
Section 59-9350.46(F) of the Oklahoma City Municipal Code requires a VARA waiver from the artist and an "affidavit signed by the property owner giving permission to place the mural on the building" to receive a permit for the mural.
The 1219 Mural was not removable from the building without distortion, mutilation, or destruction. Plaintiff testified in his deposition that he did not think about or study theWaiver when Golding sent it to him, but that he simply signed it and sent it back. Plaintiff learned later when taking the City's mural permitting class that the "waiver isn't really conducive to the artist's rights" and "limits protection of [the mural] physically." Pl.'s Dep. Tr. at 37 [Doc. No. 95-2 at 4].
I. The Waiver signed by Plaintiff was part of the permit process with the City, and was in favor of the City, not the building owner. Thus, Defendants cannot claim the benefit of the Waiver.
VARA was added to the copyright laws in 1990 and grants visual artists certain moral rights in their work. 17 U.S.C. § 106A(a); Castillo v. G&M Realty L.P., 950 F.3d 155, 163 (2d Cir. 2020). The statute offers artists the right to prevent any destruction of their work if that work has achieved "recognized stature."2 See id. § 106A(a)(3)(B); Castillo, 950 F.3d at 163; Scott v. Dixon, 309 F. Supp. 2d 395, 400 (E.D.N.Y. 2004). However, the rights conferred by § 106A(a) "may be waived if the author expressly agrees to such waiver in a written instrument signed by the author." See id. § 106A(e)(1). The waiver must "specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified." Id. "'The purpose of the written waiver is to ensure that the author is made fully aware of the circumstances surrounding the installation and potential removal of the work and has nevertheless knowingly subjected the work to possible modifications that would otherwisebe actionable under section 106A.'" Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421, 435-36 (E.D.N.Y. 2018) (quoting H.R. Rep. No. 101-514, at 21).
Pursuant to § 59-9350.46(C) of the Oklahoma City Municipal Code, murals must be submitted to the City's Arts Commission for review and comment. Applications for a mural permit must be submitted on an approved application form and should include an "affidavit signed by the property owner giving permission to place the mural on the building" and a "statement by the applicant indicating said applicant waives any VARA rights." See id. § 59-9350.46(F). Here, Plaintiff signed a document titled, "General VARA Waiver for Works of Visual Art (Mural), on November 14, 2014. [Doc. No. 95-1]. In the Waiver, Plaintiff acknowledges his rights of attribution and integrity conferred by 17 U.S.C. § 106A(a), and that his work of art will be subject to the rigors of Oklahoma weather. Id. He also acknowledges that the mural "may be destroyed, either by weather or a necessity otherwise occasioned, which requires its removal from the building." Id. According to the Waiver, Plaintiff "waives his VARA rights with respect to the uses specified below by the neighborhood or district association and The City of Oklahoma City, or anyone duly authorized by The City of Oklahoma City . . . ." Id. The specified uses identified are "Artistic enhancement of a structure in the neighborhood or district association." Id.
Plaintiff asserts that Defendants cannot benefit from the Waiver because there is no evidence of record that Defendants' decision to paint over the 1219 Mural was at the behest or direction of the neighborhood or district association and the City, or by someone duly authorized by the City. Plaintiff asserts that the Waiver should be strictly construed andthat there is no evidence of record that Defendants' whitewashing of the mural was an "artistic enhancement of a structure in the neighborhood or district association."
"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938). "[A] waiver of statutory rights is not to be lightly inferred," and must be "clear and unmistakable." Indianapolis Power & Light Co. v. N.L.R.B., 898 F.2d 524, 529 (7th Cir. 1990) (...
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