Flack v. Friends of Queen Catherine case brief summary

Flack v. Friends of Queen Catherine (2nd Cir. 2001) - VARA

 

o    Molds for sculpture had been destroyed, head of sculpture was placed outside in “garbage dump”

o    Hired Flack’s assistant to re-sculpt the face, Simon lacked skills

VARA Claims:

o    Integrity: includes right to prevent any intentional distortion, mutilation or modification that would be prejudicial to artist’s honor or reputation 17 USC 106A(a)(3)(A)

o    Modification from passage of time or inherent nature of materials is excluded

o    Also excluded modifications that result from conservation, unless caused by gross negligence

o    Test for work of visual art  (see Carter)

1.        Must meet def of work of visual art – ie sculpture

2.        Can’t be exclusion 17 USC §101 – not poster, map, globe, magazine

o    P argues placing the head outside at garbage dump exposed clay to elements and cause deterioration, was grossly negligent. Complaint did not contain allegation that D intentionally or directly damaged the head.

o    Court held: not destroyed, just passage of time (p 535)

o    P’s 2nd argument Simon’s work distorted or mutilated the clay model, D claim it was conservation, court held: Yes Simon needed supervision