## Facts

- David Phillips, a professional sculptor, was commissioned by Pembroke Real Estate, Inc. to create sculptures and related stonework for Eastport Park in South Boston, a privately owned but publicly accessible park.
- Phillips created multiple stone and bronze elements coordinated with the park’s pathways, planting beds, and spatial layout; much of the work functioned as a single integrated installation, with some free-standing pieces.
- Years later, Pembroke planned a park redesign that would remove and/or relocate at least some of Phillips’s works.
- Phillips objected, asserting that removal or altered placement would destroy the artwork as conceived because its meaning depended on its location and arrangement within the park.
- Phillips sought injunctive relief under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, and the Massachusetts Art Preservation Act (MAPA), Mass. Gen. Laws ch. 231, § 85S.

## Issues

1. Whether VARA protects “site-specific art,” such that an artist may prevent an owner from removing or relocating a work whose meaning depends on its location.
2. If VARA applies, whether VARA’s “public presentation” provision, 17 U.S.C. § 106A(c)(2), permits removal or relocation based on changes in placement or presentation.
3. Whether MAPA prevents removal of artwork based on “conceptual destruction” resulting from detaching the work from its site, as opposed to physical alteration of the object.

## Decision

- The First Circuit affirmed the denial of injunctive relief allowing Pembroke to proceed with removal/relocation in connection with the redesign.
- The court held that VARA does not apply to site-specific art; therefore, Phillips could not use VARA to bar removal from Eastport Park.
- Because VARA was inapplicable, the court did not rely on the district court’s conclusion that the “public presentation” provision authorized the redesign.
- After the Massachusetts Supreme Judicial Court’s interpretation of MAPA, Phillips also lacked a state-law right to prevent removal based on conceptual destruction.

## Legal Principles

- VARA’s moral-rights protections for “works of visual art” are limited and focus on the physical integrity of the covered work, not the artist’s interest in a particular site as an element of the work.
- A claim that removal from a location “destroys” a work because the site is a component of its meaning does not, by itself, bring the work within VARA’s protection.
- Extending VARA to site-specific art would substantially restrict owners’ control over real property; absent clear statutory language, courts will not treat VARA as granting artists ongoing control over land use decisions.
- Under MAPA as construed by the Massachusetts Supreme Judicial Court, protection targets physical alteration or destruction of the art object and does not reach alleged conceptual destruction caused solely by removal from a site.

## Conclusion

The First Circuit concluded that VARA does not protect site-specific art and therefore does not allow an artist to block a property owner from removing or relocating an installation based on the work’s location-dependent meaning; Phillips accordingly was not entitled to injunctive relief to prevent Eastport Park’s redesign.


Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006)