Phillips v. Pembroke Real Estate, Inc. (Massachusetts Supreme Judicial Court)

Pembroke Real Estate, Inc. leases Eastport Park, in the South Boston Waterfront District, from the Massachusetts Port Authority and manages it as a public park. Pembroke hired David Phillips, an artist, to help design the park and to create several sculptures to be placed in the park. After the park was completed, Pembroke decided to modify its design. Pembroke wished to remove Phillips’ sculptures to harmonize the park with its new design. Phillips sued Pembroke in federal court for the District of Massachusetts, alleging that Pembroke had no right to remove any of his sculptures from the park under the Visual Artists Rights Act (“VARA”), 17 U.S.C. § 106A and the Massachusetts Art Preservation Act (“MAPA”), G.L. c. 231, § 85S. The District Court ruled that VARA did not protect the placement of site-specific sculpture, primarily because VARA does not apply to the modification of art resulting from changes in its “public presentation,” including its placement. However, the federal judge concluded that Phillips had a substantial likelihood of showing that MAPA extended to an artwork’s surrounding environment. The court accordingly enjoined Pembroke from moving or making any alteration of Phillips’s works until the conclusion of the litigation. The federal court also certified the question whether MAPA protects site-specific art to the Massachusetts Supreme Judicial Court. NELF has filed an amicus brief in support of Pembroke. NELF argues that MAPA’s intent is to afford artists reasonable protection for the integrity of their artworks without interfering unreasonably with their patrons’ property rights. The Legislature struck a reasonable balance between artist and patron by restricting the scope of MAPA to “fine art,” which is defined as “any original work of visual or graphic art of any media . . . of recognized quality.” G.L. c. 231, § 85S(b) (emphasis added). The ordinary definition of “medium” in the art context is the physical material to which the artist applies his technique to create an artwork. This ordinary, common-sense definition applies to the physical material that the artist employs, but it does not extend to the artwork’s location, which belongs to the property owner, and not the artist. NELF also argues that the District Court applied the term “media” overbroadly to include an art object’s conceptual relationship to the surrounding space. In so doing, the Court has encumbered the patron’s property rights with a subjective and unrestricted definition of “medium,” thereby upsetting the legislative balance between artist and patron. The federal court’s decision also implicates the public interest because the artist’s work is located on public property. MAPA should not grant the artist the power to thwart the public interest by impeding the redevelopment of such property. Finally, NELF argues that, although MAPA allows the patron to obtain a written waiver from the artist regarding the artist’s rights in his work, it would make no sense for MAPA to require the patron to secure a waiver to protect existing property rights in his own land.