Of great interest to both artists and their patrons, this case raised the issue of whether the Massachusetts Art Preservation Act, M.G.L. c. 231, §85S (“MAPA”), protects the placement of site-specific art. 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 (“Phillips”), an artist, to help design the park and to create several sculptures to be placed there. After the park was completed, Pembroke decided to modify its design and wished to remove and relocate Phillips’ sculptures to harmonize the park with its new design. Phillips sued Pembroke in federal court for the District of Massachusetts, claiming 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 MAPA. 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 to Phillips’s works until the conclusion of the litigation. The federal court also certified the question whether MAPA protects the placement of site-specific art to the Massachusetts Supreme Judicial Court (“SJC”).
NELF filed an amicus brief with the SJC in support of Pembroke, arguing that the Massachusetts Legislature’s intent in passing MAPA was is to afford artists reasonable protection for the integrity of their artworks without interfering unreasonably with their patrons’ property rights. Thus, 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 with which the artist creates 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 argued that the federal court had applied the term “media” too broadly to include an art object’s conceptual relationship to the surrounding space. In so doing, the federal court had encumbered the patron’s property rights with a subjective and unrestricted definition of “medium,” thereby upsetting the balance between artist and patron that the Massachusetts Legislature had sought to strike. NELF also argued that the federal court’s decision also implicated the public interest because the artist’s work was located on public property and MAPA should not be construed to grant the artist the power to thwart the public interest by impeding the redevelopment of such property. Finally, NELF argued 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.
In a decision issued on December 21, 2004, the SJC reaffirmed the balance between artistic and property rights that MAPA had accomplished by agreeing with NELF’s position and holding that that MAPA does not protect the removal or “decontextualization” of site-specific art if such removal can be accomplished without physical damage to the work’s crafted components. In reaching its decision, the Court expressly adopted NELF’s argument limiting the statutory term “medium” to an artwork’s physical materials only and rejected the expansion of that term to include the work’s environment.