## Facts

- Simon Cheffins and Gregory Jones built *La Contessa*, a large mobile art piece fashioned from a used school bus and designed as a Spanish galleon for the Burning Man Festival.
- The work included extensive artistic construction (hull, decking, masts, and figurehead) but remained capable of movement because the underlying bus remained functional.
- The piece was used at Burning Man for transporting people and as a venue for events, including performances and weddings.
- After various festivals, Cheffins and Jones stored *La Contessa* on land in Nevada with permission of the then-possessor; after a change in land ownership, they did not remove it.
- Michael B. Stewart later acquired the land and, after the structure remained on his property for an extended period, intentionally burned its wooden portion so a scrap metal dealer could remove the bus.

## Issues

1. Whether *La Contessa* was a “work of visual art” protected by the Visual Artists Rights Act (VARA), or “applied art” excluded from VARA coverage.
2. Whether the district court abused its discretion in the conversion trial by excluding two experts, giving abandonment-related instructions, declining damages instructions (lost profits and punitive damages), and admitting evidence of drug paraphernalia near the work.
3. Whether attorneys’ fees were properly awarded to Stewart under Nevada’s offer-of-judgment framework after plaintiffs rejected an offer and failed to obtain a more favorable result.

## Decision

- The court affirmed summary judgment for Stewart on the VARA claim because *La Contessa* was “applied art,” not a VARA-protected “work of visual art.”
- The court affirmed the defense verdict on conversion, finding no reversible error in the district court’s management of experts, jury instructions, damages submissions, or evidentiary rulings.
- The court affirmed the award of attorneys’ fees to Stewart based on Nevada offer-of-judgment provisions.
- A concurring judge agreed with the outcome but questioned the breadth of the majority’s formulation for “applied art,” favoring a purpose-focused inquiry.

## Legal Principles

- VARA protects only “works of visual art” and excludes “applied art” as defined in 17 U.S.C. § 101.
- An object is “applied art” when it is a utilitarian object that continues to serve a utilitarian function after artistic modification; by contrast, a work is not “applied art” if its function is purely aesthetic or if artistic transformation ends its utilitarian function.
- A district court has substantial discretion over expert admissibility, jury instructions, and evidentiary rulings; appellate review is deferential absent an abuse of discretion affecting substantial rights.
- Under Nevada offer-of-judgment rules, a prevailing defendant may recover attorneys’ fees when a plaintiff rejects an offer of judgment and then fails to obtain a more favorable outcome.

## Conclusion

The Ninth Circuit held that a Burning Man “art car” built on a functional bus remained a utilitarian object and thus fell outside VARA’s protection as applied art; it also upheld the defense verdict on the state-law conversion claim and affirmed a fee award triggered by plaintiffs’ rejection of an offer of judgment.


Cheffins v. Stewart, 825 F.3d 588 (9th Cir. 2016)