982 F. Supp 625 (1997)
· P created sculpture on private land, but owned by his boss
· Issue: P asserts claim under VARA for destruction.
D’s Arguments for SJ
1. Not a work of recognized stature. (not defined in VARA)
o Test for Stature: 1) viewed at meritorious; 2) “recognized” by art experts and member of art community. deters nuisances suits for damaged finger paints
o Ct held: was stature
2. Sculpture was advertising and excluded from VARA
o “work of visual art” does not include any merchandising item or ad,
o Ct held: not ad
3. Work made for Hire and excluded under 101
o D argues employer provided all materials, was in scope of employment
o R. Agency §228(1) scope of employment test
1. Kind of work – P claims work is more engineering, and charges fee for artistic abilities on designs
Ct ruled: not work for hire
1. Author §101
2. Work of visual art – painting, drawing, print or sculpture, existing in a single copy.
3. Sculpture was created before VARA but P maintained title
4. Work of recognized stature – P had recognized status in art community and public
5. Was intentionally destroyed 17 USC 106A(a)(3)(b) – destruction must be intentional or grossly negligent.
Ruling: court grants P’s MSJ, issue of damages remains