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An Albany, N.Y., artist whose mural protesting funding cuts for legal aid was damaged by New York state officials will have an opportunity to pursue her claim under the Visual Artists Rights Act. In a decision this week, U.S. District Judge David N. Hurd of the Northern District of New York in Utica refused New York state’s motion for summary judgment. Instead, he held, in Pollara v. Seymour and Casey, 99-CV-923, that Joanne Pollara can proceed under the Visual Artists Rights Act (VARA), 17 U.S.C. �106A. This means that she may attempt to show that the mural commissioned by the Gideon Coalition was a “work of recognized stature” within the meaning of VARA, and that it was destroyed either intentionally or through the gross negligence of a state official. Pollara’s action arises from an incident in 1999. An artist who paints for hire and has created works for various advocacy groups, Pollara was commissioned by the Gideon Coalition to produce a painting to be displayed at the state-owned Empire State Plaza (ESP) when the organization protested anticipated cuts in legal aid funding. Pollara produced a 10-by-30-foot mural showing figures standing in line outside the closed doors to legal services. It included the phrases “Executive Budget Threatens the Right to Counsel,” and “Preserve the Right to Counsel, Now More Than Ever.” Pollara hung the painting in the Plaza after wrongly assuming that the Gideon Coalition had obtained the requisite permit. That night, before the mural was viewed by the public, it was removed by the New York state Office of General Services and severely damaged in the process. The state claimed that it was impossible to remove the mural from its metal frame without ripping it, and that any damage was accidental. Pollara disagrees and contends that when she returned to the plaza the next day she found her mural torn and crumbled in the office of Thomas E. Casey, the plaza manager. Casey claims the mural was carefully rolled and stored for Pollara’s retrieval. The lawsuit was brought against Casey and Joseph J. Seymour, commissioner of the Office of General Services, and predicated on VARA, which was enacted to empower artists to “prevent any [intentional or grossly] negligent destruction of a work of recognized stature.” Assistant Attorney General Charles J. Quackenbush, who is defending the state, moved for summary judgment, arguing that the mural was illegally placed in the Empire State Plaza without a permit, that it is not a “work of recognized stature” since it was never publicly displayed, and that Seymour and Casey are entitled to qualified immunity. THRESHOLD ISSUE Turning to the threshold issue of whether VARA even applies, Judge Hurd wrestled with the undefined statutory phrase “work of recognized stature.” He said courts have generally evaluated VARA claims on the basis of whether the artwork in question has achieved a degree of stature that has been recognized by the artistic community or a cross-section of society. But Hurd said a prior recognition should not be a precondition to sustaining a VARA claim, and he rejected the state’s argument to that effect. Hurd observed that VARA resulted from public outcry when a Pablo Picasso painting was cut into postage stamp-size pieces and offered for sale. He said it is doubtful that the outcry motivating VARA would have been any less had the destruction involved a newly discovered cultural treasure that had not been previously displayed. “In addition, an artist’s interest in the product of his or her labor is no less significant prior to its public display,” Hurd wrote. “The investment of time, effort and creativity is no less substantial, and the value of the product to the artist’s collective body of work no less significant, merely because the work is newly completed or not yet exhibited. It would defy logic to read the phrase ‘work of recognized stature’ in such a way as to ignore the substantial interests which accrue upon the creation of work of art.” Here, Hurd said, Pollara, who submitted affidavits from two Albany art experts to demonstrate that her work has stature in the relevant community, has raised a genuine issue of fact sufficient to overcome a summary judgment motion. Hurd also rejected the state’s qualified immunity argument. However, he found nothing to sustain a claim against Seymour, and dismissed that cause of action. Paul C. Rapp of Cohen, Dax & Koenig in Albany appeared for Pollara.

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