## Facts

- A sculptor created and installed a large exterior wall sculpture in 1973 on the north wall of 599 Broadway in Manhattan, with the building owner’s permission and without a written agreement addressing removal.
- The building later became a condominium, and control transferred to the condominium board.
- The building sat within a historic district, requiring approval from the municipal landmarks commission for façade work.
- The board sought to repair structural deterioration of the wall and pursued permanent removal of the sculpture to permit a protective wall treatment.
- The artist asserted that removal would violate federal and state moral-rights protections.
- The landmarks commission allowed temporary removal for repairs but ultimately denied the board’s request for permanent removal; by that time, the sculpture had been fully removed.
- The board filed suit seeking declaratory relief that the artist had no enforceable federal rights requiring restoration or damages.
- The artist asserted counterclaims under the Visual Artists Rights Act (VARA), New York’s Artists’ Authorship Rights Act (AARA), the Lanham Act, and New York common law, and argued he had a property interest (e.g., easement) to keep the work on the wall.

## Issues

1. Whether the sculpture qualified as a “work of visual art” under VARA and whether its removal constituted a prohibited “destruction” or “modification.”
2. Whether VARA preempted the artist’s AARA claim for moral-rights protection.
3. Whether the artist could maintain Lanham Act claims for false designation of origin and dilution after the sculpture was removed.
4. Whether the artist had an easement or other property-law interest requiring the board to maintain or restore the sculpture.

## Decision

- The court held the sculpture was a “work of visual art” protected by VARA.
- The court denied both sides’ summary-judgment motions on the VARA claim because material factual disputes remained as to whether the removal amounted to “destruction” or an impermissible “modification,” including questions about the work’s condition and the feasibility of reinstallation.
- The court granted summary judgment for the board on the AARA claim, concluding VARA preempted state moral-rights protection as applied to covered works.
- The court granted summary judgment for the board on the Lanham Act counterclaims because removal eliminated any actionable ongoing misattribution, and the dilution theory was time-barred.
- The court rejected the artist’s easement and related common-law theories because there was no written grant of an easement and the initial use was permissive, defeating any prescriptive claim.
- The VARA claim was the only claim left for trial.

## Legal Principles

- A large exterior sculpture affixed to a building can qualify as a “work of visual art” under VARA.
- Whether removal of an attached artwork constitutes VARA “destruction” or prohibited “modification” may require fact-specific proof, including the work’s post-removal condition and the feasibility of reassembly or reinstallation.
- VARA preempts state-law moral-rights claims that seek rights equivalent to VARA for works within VARA’s scope.
- Lanham Act false designation theories generally require an actionable, ongoing misrepresentation in commerce; removal of the work can defeat such claims, and dilution claims are subject to limitations defenses.
- An easement in gross typically requires a written grant; permissive use defeats the adversity element necessary for a prescriptive easement.

## Conclusion

The court recognized VARA coverage for the exterior sculpture but reserved for trial whether the removal violated VARA’s protections against destruction or modification, while disposing of the artist’s state moral-rights, Lanham Act, and property-interest theories on summary judgment.


Bd. of Managers of Soho Int’l Arts Condo. v. City of New York, 2003 U.S. Dist. LEXIS 10221 (S.D.N.Y. 2003)