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Ruling that a 6,000-pound sculpture of a swan in Southampton, N.Y., was not subject to protection under the little-tested Visual Artists Rights Act, a federal judge has thrown out a lawsuit brought by a local artist claiming damages from the destruction of her work. In Scott v. Dixon, 02-CV-4654, artist Linda Scott argued that the swan sculpture, a 40-foot-long wood and steel work commissioned by defendants Peter and Candida Dixon, was irreversibly damaged when the Dixons allowed it to deteriorate in a storage lot. Scott also is the creator of a 52-foot-tall sculpture of a deer, called the Stargazer Deer, located in eastern Suffolk County and visible to passersby on their way to the Hamptons. The Dixons, who paid about $20,000 for the swan sculpture in 1991, had it dismantled from their backyard when they sold their five-acre estate in 1999. The couple had paid $5,400 to remove and store the massive work, originally painted white, outside on a local construction company’s property. In a 12-page decision signed last month, the judge held that Scott’s swan was not of “recognized stature” as required by the Visual Artists Rights Act (VARA) to invoke the law’s protection. Dismissing the complaint, the judge determined that although the statue “may have had artistic merit” and that Scott may have achieved “some level of local notoriety,” those factors could not defeat the defendants’ motion to dismiss. The decision has garnered interest because of a lack of cases dealing with VARA, said Donald Markowitz, Scott’s attorney. He said his client will not appeal the decision. He practices with Flower, Medalie & Markowitz in Bay Shore, N.Y. The Dixons’ attorney, John T. Morin, said that the couple was unaware of the federal law and that the artist did not seem interested in taking possession of the sculpture once they removed it from the home on Coopers Neck Lane. He practices with Wormser, Kiely, Galef & Jacobs in New York. Jennifer L. Marlborough, also with the firm, wrote the defendants’ brief in the case. Of the few cases dealing with VARA, enacted in 1990, most have not reached the question of whether the work meets the “recognized stature” question, said Barbara Hoffman, an art law attorney practicing in Manhattan. Cases focus mainly on whether the work actually constitutes art, as opposed to work for hire, or whether the piece has been destroyed or altered, she said. The intent of the statute, she explained, is to protect the artist’s reputation and to preserve works for historical purposes. ISSUE OF ‘RECOGNIZED STATURE’ During a two-day non-jury trial before Judge Wexler in December, Scott argued that the swan was part of a series that included the Stargazer Deer, located on Country Route 111. That sculpture is visible from Sunrise Highway, a much-traveled road for travelers out East. Specifically, Scott asserted that the swan was included in the “Stargazer Series” and that even if the Swan was not of “recognized stature” under VARA, the series was. For support, she submitted a 1992 Newsday article that used the term, “Stargazer Series,” in reference to her work. The judge noted, however, that the article described the series as including “renditions of human heads gazing skyward.” She also introduced another newspaper article referring to the Dixon home and the sculpture. It mentioned Scott, “of Stargazer fame.” Through expert testimony, Scott further asserted that the sculpture became rusted, buckled and covered with vines while stored outside. One of the swan’s wings also was irreparably bent, she argued. The Dixons countered with their own expert, a metallurgical engineer, who testified that the swan could be repaired and corrected with “various metal working techniques.” But the judge found, as a matter of fact, that the swan could not be restored to its former condition as a work of art. According to the decision, the Dixons, who moved to New York City after they sold their home, contacted Scott about moving the statue, which had been situated on their property out of view from the public. The letter referred to discussions the parties had about moving it from the storage lot and to another location on Long Island. The letter also stated that the Dixons would not absorb the cost of moving the piece again, although they paid, and continue to pay, storage fees for the statue. In considering whether VARA applied, Wexler partly relied on Carter v. Helmsley-Spear, 861 F.Supp. 303 (SDNY 1994), which held that “recognized” means work that is recognized by the artistic community or the general public. He further observed that determining whether it is recognized amounts to more than the recognition of the artists themselves. Citing Martin v. City of Indianapolis, 982 F.Supp. 635 (S.D. Ind. 1997), the judge wrote that the artwork at issue must have acquired recognized stature, something not found with the swan sculpture. And though the judge said that he could imagine situations in which an artist’s work was of such recognized stature that any work by that artist would be subject to VARA’s protection, it was not the case here. “For example, the court would be hard pressed to hold that a newly discovered Picasso is not within the scope of VARA simply because it has not been reviewed by the artistic community,” he wrote. “While the plaintiff has received some level of local notoriety, that stature is not so great as to afford VARA protection to each and every work she creates.” As such, the judge dismissed the claim brought under 17 USC � 106A(a)(3)(B) and ordered the court clerk to close the file.

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