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United States District Court, S.D. New York
Jun 17, 2003
01 Civ. 1226 (DAB) (S.D.N.Y. Jun. 17, 2003)


01 Civ. 1226 (DAB)

June 17, 2003

Jeffrey L. Braun, Kramer Levin Neftalis Frankel LLP, New York, New York, Attorney for Plaintiff Board of Managers.

Richard A. Altman, New York, New York, Attorney for Defendant Forrest Myers.

Virginia Waters, The City of New York Law Department New York, New York, Attorney for Defendants City of New York and New York City Landmarks Preservation Commission.


The Court has before it Plaintiff Board of Managers of Soho International Arts Condominium's (the "Board") and Defendant Forrest Myers' ("Myers") cross motions for summary judgment to determine whether the Board can permanently remove a work of art, authored by Myers (the "Work") and instaired on the exterior of its building located at 599 Broadway, New York, New York ("599 Broadway" or the "Building").

The Board's Complaint contains in total six claims against Myers and the remaining Defendants the City of New York (the "City") and the New York City Landmarks Preservation Commission (the "Commission"). The claims against Myers are: (1) a claim seeking a declaration that Myers has no rights under the federal Visual Artists Rights Act, 17 U.S.C. § 101 et seq., ("VARA"); and (2) a claim seeking a declaration that Myers has no rights under the New York Artists' Authorship Rights Act, N.Y. Arts Cult. Aff. Law § 14.03 ("AARA"). See Compl. ¶¶ 76-85.

The four remaining claims against the Defendants that are not addressed in this Opinion are as follows: (1) a 28 U.S.C. § 1983 claim alleging violations by the Commission of the First, Fifth and Fourteenth Amendments; (2) a claim under New York law for the Commission's purported violations of the New York State Constitution which are analogous to the first cause of action asserted; (3) a claim alleging that the Commission exceeded its statutory jurisdiction under New York law; and (4) a claim of improper delegation by the Commission to a private citizen in contravention of New York law. See Compl. ¶¶ 62-75, 86-89.

In his Answer, Myers brought five counterclaims against plaintiff Board. Two of the counterclaims seek declaratory judgments that VARA and AARA grant Myers rights to require the Board to restore and display the Work on the Building's northern wall. See Myers Ans. ¶¶ 18-48. In his remaining counterclaims, Myers sought relief under the Lanham Act, 15 U.S.C. § 1125, and property claims under New York common law. Specifically, Myers alleged that the ongoing public display of the Work since the 1997 removal of some of the Work's projections constituted a false designation claim under the Lanham Act. See Myers Ans. ¶¶ 49-52. In his motion for summary judgment, Myers also sought relief under the anti-dilution provision of the Lanham Act, though he never raised the claim in his Answer or any subsequent pleadings. Under this dilution claim, Myers argues that in 1983, when the then-owners sought to convert the Building into condominiums, they issued an offering plan, dated May 28, 1982, (the "Offering") which prominently features one of the braces as a decorative feature over the 599 Broadway title. (Topping Aff., Exh. 18.). This Offering, Myers contends, diluted the quality of his famous, if unregistered, mark in violation of the Lanham Act. See Myers Memo. of Law at 19. Finally, in his two common law claims, Myers asserts that he has either an easement in gross or a prescriptive easement over the northern wall of 599 Broadway. See Myers Ans. ¶¶ 53-74.

As directed by the Court, Plaintiff first moved for summary judgment against Myers individually and against all of Myers' counterclaims. Specifically, the Board asks for a declaratory judgment that VARA and AARA do not apply to Myers' work and for summary judgment on all five of Myers' counterclaims in Plaintiff's favor. Myers, in response to the Board's motion, filed a cross motion for summary judgment against the Board on the same claims, seeking a declaratory judgment that VARA and AARA protect Myers' work and summary judgment on all five of his counterclaims.

The remaining Defendants, the City and the Commission, have filed no papers with the Clerk of Court in support of either the Board's or Myers' respective motions now pending before this Court. The remaining claims between the Board and the City and Commission will be adjudicated in a later motion as directed by the Court.


A. 599 Broadway's History and the Genesis of the Work

Erected in 1917, 599 Broadway is a twelve-story loft structure, located on the west side of Broadway between Spring and West Houston Streets. (Pl. 56.1 Stmt. ¶ 3) The Building is currently organized as a condominium under the New York Condominium Act, and Plaintiff is the duly constituted Board of Managers for all of the condominium unit owners in the Building. (Compl. ¶ 11; Pl. 56.1 Stmt. ¶ 1.)

Defendant Myers has filed his own 56.1 Statement in which he admitted that "Plaintiff's statements [of facts] 1 through 22 [in its 56.1 Statement] are not disputed." Myers 56.1 Stmt. ¶ 1. Myers' response also acknowledged that statements 24 through 35 in the plaintiff's 56.1 Statement were undisputed. For the sake of brevity, this Opinion will note only when Myers' 56.1 statement differs from the Board's. Thus, any citation herein to Plaintiff's 56.1 Statement should be deemed to be undisputed fact admitted by both parties unless otherwise explicitly noted.

For the time period relevant to this motion, the Building has had several owners. The first was Charles J. Tanenbaum, who owned the building when the Work was first proposed and built in 1973. In December of 1980, the Building was bought by 599 Associates. (Pl. 56.1 Stmt. ¶ 24.) On April 8, 1981, Soho Landmark Associates, acquired a 50% share in the Building from 599 Associates. (Pl. 56.1 Stmt. ¶ 26.) Broadway Houston Associates then acquired an interest in 599 Associates on March 17, 1983, and later that same year, these new owners all sought to convert the Building into condominiums. (Pl. 56.1 Stmt. ¶ 26.) The Board is the governing body of the resulting 1983 condominium conversion and may bring an action on behalf of the owners of the condominium units. See N.Y. Real Prop. § 339-dd ("Actions may be brought or proceedings instituted by the board of managers in its discretion, on behalf of two or more of the unit owners . . . with respect to any cause of action relating to the common elements or more than one unit.").

Sometime in the 1940s, the City widened Houston Street, which resulted in the destruction of almost the entire building abutting 599 Broadway on the north, making 599 Broadway the northernmost building on the west side of Broadway. To secure structural support, the northern wall of the Building was anchored to the remnants of the adjacent structure's southern wall. (Pl. 56.1 Stmt. ¶¶ 4, 5.) The anchor system consisted of a series of evenly-spaced braces, grouped in seven rows of six, totaling forty-two in number. The lowest row of braces hung seventeen feet above the street. (Pl. 56.1 Stmt. ¶ 5.)

In 1972, Charles J. Tanenbaum ("Tanenbaum"), the then-owner of 599 Broadway, consented to the installation of a mural or artwork on the northern wall of his Building. (Pl. 56.1 Stmt. ¶ 7). The installation was to be part of a broader citywide effort to enhance the urban landscape under the auspices of City Walls Inc. ("City Walls"), a not-for-profit organization, which began sponsoring artwork in public spaces and other outdoor venues throughout the city in the late 1960s. (Pl. 56.1 Stmt. ¶¶ 6, 12.) City Walls then commissioned Myers, a visual artist by profession, to design the installation and create it. (Pl. 56.1 Stmt. ¶ 8.)

Utilizing these braces, Myers created a three-dimensional work by bolting four-foot aluminum bars perpendicularly to each of the forty-two steel braces on 599 Broadway's northern wall. The perpendicular bars extended into and over New York City property above the sidewalk on West Houston. (Pl. 56.1 Stmt. ¶ 8.) The braces, the aluminum additions, and the wall itself were painted various colors. (Pl. 56.1 Stmt. ¶ 8.)

The installation of the Work required Tanenbaum and City Walls to obtain approval from various city commissions and boards. First, on June 10, 1972, Tanenbaum filed an application for the installation of the Work with the City's Department of Buildings, which granted approval for the project approximately three months later. (Pl. 56.1 Stmt. ¶ 10; Topping Aff., Exh. 6.) Soon thereafter, in a letter dated January 19, 1973, Tanenbaum also sought approval from the City's Art Commission, the governmental entity charged with the oversight of art installations in public space. The Art Commission approved the project on February 5, 1973. (Pl. 56.1 Stmt. ¶ 11.)

Finally, on April 23, 1973, City Walls petitioned the City's Board of Estimate for "consent to erect an artistic creation involving various projections over the City sidewalk on the north wall of the building known as 599 Broadway." (Topping Aff., Exh. 11 at P000038.) The City Walls petition informed the Board of Estimate that it intended to "sponsor an artistic project . . . for the north wall of the building located at 599 Broadway;" that it did "not own or lease the said building on which the Project will be located;" and that the "owner of the building, Mr. Charles J. Tanenbaum . . . donated the use of the wall for the Project without cost to Petitioner." (Topping Aff., Exh. 9 at P000014-15.) In a letter to the Board of Estimate, dated May 2, 1973, Tanenbaum gave his "consent and authorization to City Walls, Inc. to use the north wall of the building located at 599 Broadway in the Borough of Manhattan, City and State of New York for the erection of an artistic project." (Pl. 56.1 Stmt. ¶ 13; Topping Aff., Exh. 10 at P000017.)

A month later, the Board of Estimate issued its approval to City Walls, though it expressly conditioned that its consent for the erection of the Work "in no case shall extend beyond a term of ten (10) years from the date of its approval by the Mayor and thereupon all rights of the grantee[, City Walls,] in said streets, by virtue of this consent, shall cease and determine." (Topping Aff., Exh. 11 at P000039.) Mayor John V. Lindsay approved the resolution on August 16, 1973. (Pl. 56.1 Stmt. ¶ 15.) No one has ever sought an extension of the Board of Estimate's consent. (Pl. 56.1 Stmt. ¶ 16.)

The Work's components were fabricated under Myers' supervision in November of 1973. (Pl. 56.1 Stmt. ¶ 22.) By the end of 1973, Myers had completed the installation of the Work on the Building's northern wall. (Pl. 56.1 Stmt. ¶ 21.) The cost of the project, which was funded by City Walls with grants from Chase Manhattan Bank, the National Endowment for the Arts, and Tanenbaum, totaled approximately $10,000.00; Myers received a small portion of this as an artist's fee. (Pl. 56.1 Stmt. ¶¶ 7, 11, 22.)

The Plaintiff contends that since the installation of the Work, Myers has not contributed financially to the maintenance and upkeep of the Building or the Work (Pl. 56.1 Stmt. ¶ 23.) Myers disputes this contention and asserts that when a waterproofing company indicated that removal of the Work would facilitate needed repairs to the Building, Myers and the Public Art Fund paid $800.00 to keep the artwork intact. (Myers 56.1. Stmt. ¶¶ 2, 17.) Myers also claims that he supervised both attempts to restore the Work and further traveled to New Jersey to supervise the mixing of color. (Myers 56.1. Stmt. ¶ 21.)

B. The Parties Understanding of the Work's 1973 Installation

There appears to be minimal written documentation of the various parties' expectations and understandings of the Work's installation and duration at the time the Work was made.

As between Tanenbaum and Myers, both the Board and Myers agree that the two men never entered into a written agreement concerning the Work, its design, construction, ownership, title, or duration. (Pl. 56.1 Stmt. ¶ 9.) The Court notes that Myers' affidavit makes reference to an alleged oral understanding involving Tanenbaum and Myers for the installation of the Work. (Myers Aff. ¶ 5.) However, Myers submitted no evidence of the nature or terms of this understanding; there is an oblique reference in his Affidavit where he claims that "no one present at its creation ever contemplated that the Wall would or could be removed." (Myers Aff. ¶ 3.)

As between Tanenbaum and City Walls, there is circumstantial evidence that they had come to some understanding between themselves regarding the installment of a City Walls-sponsored artwork on the Building's northern wall. See Topping Aff., Exh. 7 (a letter from Tanenbaum to the Art Commission noting the collaboration between Tanenbaum and City Walls to install the Work); Topping Aff., Exh. 9 at P000017 (a petition from City Walls noting that "[t]he owner of the building [upon which the Work would be installed], Mr. Charles J. Tanenbaum, has donated use of the wall for the Project" to City Walls); Topping Aff., Exh. 13 at P000019 (a letter from Tanenbaum to the Landmarks Commission discussing the evolution of the Work, beginning with his being contacted by City Walls for permission to use the northern wall). While there appears to be no written agreement delineating the legal or durational relationship between Tanenbaum and City Walls, it is clear that Tanenbaum granted permission for City Walls to make the application to the Board of Estimate for the Work's approval and to use the northern wall at 599 Broadway. See Topping Aff., Exh. 10. Lastly, the President of Public Art Fund ("PAF"), the successor to City Walls, admitted in a 1987 letter that she was "of course aware that the wall was commissioned as a temporary work. . . ." (Topping Aff., Exh. 22 at P000069).

As between City Walls and Myers, no parties have indicated that an agreement existed. In his Affidavit, Myers states that there was an informal, oral understanding between Myers, City Walls, and Tanenbaum that he would install the Work. (Myers Aff. ¶ 5.) However, the record contains no other evidence of this supposed agreement nor any of its provisions. Affidavits on behalf of both the Board and Myers agree that Myers received a portion of the $10,000 expended on the project as an artist's fee. (Topping Aff. ¶ 15; Myers Aff. ¶ 5). However, there is no documentation between them addressing ownership of or title to the Work.

As between Tanenbaum and the City, Tanenbaum filed applications with the Department of Buildings and the City's Art Commission for their approval of the Work's installation at 599 Broadway. (Topping Aff., Exh. 6; Topping Aff., Exh. 8). Both municipal agencies approved the Work, and their authorizations do not contain any provisions regarding the Work, its ownership, or its duration.

Finally, as between City Walls and the City, there is the Board of Estimate's consent. In its authorization to City Walls to proceed with the installation of the Work, the Board of Estimate placed certain restrictions on the Work. First, there was a ten-year limit to the agency's consent, renewable only by application to and approval from the Board of Estimate. (Topping Aff., Exh. 11 at P000039.) Second, the grantee City Walls could not transfer title to the work:

This consent is for the exclusive use of the grantee and solely for the purpose hereinabove mentioned and shall not be assigned either in whole or in part, or leased or sublet in any manner, nor shall title thereto, or right, interest, or property therein pass to or vest in any other person . . . without the consent in writing of The City of New York, acting by the Board of Estimate. (Topping Aff., Exh. 11 at P000039.)
C. Efforts to Repair the Building's Northern Wall and the Current Condition of the Work

In February 1981, the Building's then-owners, 599 Associates, applied to the Landmarks Preservation Committee for permission to make repairs to the 599 Broadway's northern wall. (Pl. 56.1 Stmt. ¶ 28.) While the owners were contemplating the repair work, Myers, according to his affidavit, met with Mr. Frank Millo, the lawyer for 599 Associates, to discuss the Work. Specifically, Mr. Myers alleges that "Mr. Millo told me that [the Building's owner] wanted the art work to be removed and I protested strenuously." (Myers Aff., ¶ 10.) Myers further claims that after much public outcry, 599 Associates relented and decided to continue the display of the Work. The Commission approved a work permit issued on March 11, 1981, and the repairs were completed with the Work remaining on the Building's northern wall completely intact. (Pl. 56.1 Stmt. ¶ 29.)

By 1987, the northern wall was again in need of repair. The Building's managing agent sought permission from the Commission to apply waterproofing to the northern wall and to remove the Work. (Pl. 56.1 Stmt. ¶ 32.) This action prompted Myers and his wife to write to the owners of 599 Broadway in a letter dated May 24, 1987, urging the continued display of the Work and stating:

If you have any ideas or suggestions regarding this matter, please call, or perhaps we could arrange to meet at one of your future condo/board meetings . . . Ask people you know what they think about the piece. You will probably be surprised at how many people appreciate and know 599 Broadway by "The Wall," and would hate to think of its destruction. (Topping Aff., Exh. 23 at P000060.)

Later that same year, the Commission advised the managing agent of 599 Broadway that the removal of the Work would require a public hearing since, in the Commission's view, "the wall sculpture is an integral part of a protected building" in a historic district; the managing agent withdrew his request to remove the mural in order to repair the wall. (Pl. 56.1 Stmt. ¶ 33.) Instead, the building agent, in a letter agreement, dated October 26, 1987, and signed by himself, PAF, and Myers, stated that the waterproofing material needed to repair the masonry of the northern wall would approximate the present color of the wall; that PAF would provide the Building with the paint necessary to paint the metal pieces protruding from the wall; and that PAF would bear the labor costs necessary to repaint these metal pieces. (Pl. 56.1 Stmt. ¶ 34.) On March 22, 1988, the Commission issued a permit for the work to be completed. (Pl. 56.1 Stmt. ¶ 35.)

In 1997, the Board again contemplated the repair of the wall and the removal of the Work. This prompted Myers to write another letter, this time through his attorney, Richard Altman. Dated March 13, 1997, the letter stated that any attempt to remove the Work would violate various federal and state laws, such as VARA, AARA, and New York common law. (Topping Aff., Exh. 28.)

Several months later on October 15, 1997, the Plaintiff sought the Commission's permission to remove the Work from the Building's northern wall. The Commission approved the "interim removal of unstable steel braces, along with the attached projecting sculpture," and the eastermnost row of braces were removed. (Pl. 56.1 Stmt. ¶ 40; Topping Aff., Exh. 31 at P000225.) The Commission found that "the work would eliminate a potentially unstable condition, and that the work would allow for an inspection of the condition of the braces, structural attachments, and the underlying masonry, and enable the applicant to develop a proposal to address structural deterioration and future reinstallation of the sculpture, if feasible." (Pl. 56.1 Stmt. ¶ 40; Topping Aff., Exh. 31 at P000226.) The permit did not indicate that reinstallation of the braces was required nor did it give any time frame for such an action; however, it did explicitly provide that "any future proposal . . . to reinstall the sculpture, may be approved . . . [and any] proposal to permanently eliminate portions, or the entirety, of the braces, sculpture, or the underlying masonry, will be reviewed at a Public Hearing for a Certificate of Appropriateness." (Topping Aff., Exh. 31 at P000226).

§ 25-307 of the New York City Administrative Code explains the process by which an applicant who wishes to "construct, reconstruct, alter or demolish any improvement on a landmark site, or in an historic district" must follow to obtain government approval for the changes to the landmark site. N.Y.C. Code § 25-307. The applicant petitions the Commission, who makes a determination as to whether the work may go forward based on various factors, including "the effect of the proposed work in creating, changing, destroying or affecting the exterior architectural features of the improvement" and "the relationship between the results of such work and the exterior architectural features of other, neighboring improvements in such district." Id.

The Board decided that it would seek from the Commission approval to remove the Work permanently from 599 Broadway. The Commission then treated the application to remove the Work permanently as an Application for a Certificate of Appropriateness under section 25-307 of the New York City Administrative Code. The Commission held public hearings on the application in 1997 and 1998 and considered the application during public meetings in 1998, 1999, and 2000. During the course of these hearings, members of the artistic community and city residents formed the "Committee to Save the Wall" to spearhead a public drive to preserve "a beloved Soho landmark." (Myers Aff., Exh. D.) On November 12, 2000, the Commission denied the Board's application in a written decision. (Pl. 56.1 Stmt. ¶ 41.)

The committee members included Frank Stella, Richard Serra, and Robert Rauschenberg. See Myers Aff., Exh. D. The Work also generated numerous news articles in the New York press. See Myers Aff., Exh. E.

Litigation commenced in this case in February of 2001 when Plaintiff Board brought suit against the three above-named Defendants. Plaintiff and Defendant Myers cross filed motions for summary judgment in 2002.

D. Post Summary Judgment Events

Letters received in October 2002 by the Court indicate that the Commission in the summer of 2002 had apparently authorized repair work on the Building, which included the removal of the Work from 599 Broadway's northern wall. See Myers Letter, October 3, 2002; City Letter, October 11, 2002; Pl. Letter, October 15, 2002. However, there is disagreement among the parties to the litigation whether the Board promised to restore the Work after completion of the exterior wall's overhaul and to keep it there pending determination of the case at bar. However, all parties agree that the Work has been entirely removed from the Building.

The City contends that the Commission "conditioned the removal of the sculpture and repair of the side of building on the expeditious reinstallation of the Wall." City Letter, October 16, 2002. The Board, however, indicates that "there is no valid reason to require plaintiff to bear the considerable cost and inconvenience of fabricating and installing a replica of the mural until this Court has had the opportunity to decide the merits of this case, provided, of course, that plaintiff and the City proceed with reasonable expedition to place the merits before the Court, as both sides claim to be doing." Pl. Letter, October 18, 2002.
Because of the disputed terms, Myers indicated his intention to seek a preliminary injunction. See Myers' Letter, Oct. 16, 2002. The Court set out a schedule for such a motion in an October 24, 2002 Order; however, no motion papers were ever filed. Meanwhile, the Board, City, and Commission all argued that such an action was beyond the purview of the pending motions for summary judgment. These three parties felt the issue would be better addressed in the subsequent motions for summary judgment that the Board and the City and Commission would file. See City Letter October 16, 2002; Pl. Letter October 18, 2002.


A. Summary Judgment Standard

A district court should grant summary judgment when there is "no genuine issue as to any material fact," and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000). Genuine issues of fact cannot be created by mere conclusory allegations; summary judgment is appropriate only when, "after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." See Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)).

In assessing when summary judgment should be granted, "there must be more than a `scintilla of evidence' in the nonmovant's favor; there must be evidence upon which a fact-finder could reasonably find for the non-movant." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A court must always "resolv[e] ambiguities and draw reasonable inferences against the moving party," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); however, the non-movant may not rely upon "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight, 804 F.2d at 12. Instead, when the moving party has documented particular facts in the record, "the opposing party must, `set forth specific facts showing that there is a genuine issue for trial.'" Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (quoting Fed.R.Civ.P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "`to put up or shut up.'" Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Accordingly, unsupported allegations in the pleadings cannot create a material issue of fact. Id.

For cases in which both sides move for summary judgment, a district court need not grant judgment as a matter of law for one side or the other. Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981). Instead, it must evaluate "each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Id. at 314.

B. Visual Artists Rights Act ("VARA")

Plaintiff seeks a declaration that Myers has no rights under VARA to compel the restoration of the Work or to obtain damages for its removal. Myers maintains the exact opposite.

Congress enacted VARA in 1990 in order to protect "the reputations of certain visual artists and the works of art they create." H.R. Rep. No. 101-514 at 1 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915. VARA achieves this objective by granting artists two key rights. First, VARA gives certain visual artists the right of "attribution," namely that "artists are correctly identified with the works of art that they create." Id.; see also Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995). Second, artists can assert the right of "integrity," which allows them to protect their works against "modifications or destructions that are prejudicial to their honor or reputations." See H.R. Rep. No. 101-514 at 1 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915; Carter, 71 F.3d at 81.

The rights of "attribution" and "integrity" are often called "moral rights," first developed in France ("le droit moral") and long recognized in international law. See Carter, 71 F.3d at 81-82 (noting that "moral rights are well established in the civil law"). These rights are premised on the theory that "an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved." Id. at 81 (citations omitted).
American jurisprudence was slow to integrate the theory. Bills protecting artists' moral rights had been introduced in Congress as early as 1979 but failed to pass. Id. at 82. Not surprisingly, California and New York were the first American jurisdictions to create and codify these moral rights through statutory protections enacted in 1979 and 1983, respectively. Id.; see Cal. Civ. Code § 987 et seq.; N.Y. Arts Cult. Aff. Law § 14.03.
Finally in 1990, Congress passed VARA and granted to artists nationally those moral rights long enjoyed overseas. A chief motivation in the implementation of VARA stemmed from the United States' ratification of the Berne Convention, an international treaty dealing with copyright. Indeed, "[a]fter almost 100 years of debate, the United States joined the Berne Convention, effective in March 1989. While the Convention is the premier international copyright convention, consensus over United States adherence was slow to develop in large part because of debate over the requirements of Article 6bis," which contained the provisions recognizing the moral rights of artists. H.R. Rep. No. 101-514 at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6917. The House Subcommittee on the Judiciary reported that "H.R. 2960 brings U.S. law into greater harmony with laws of other Berne countries." Id. at 10, reprinted in 1990 U.S.C.C.A.N. 6915, 6920 (citation omitted).

VARA, nevertheless, does not protect every piece of visual art. Instead, Congress established a statutory scheme that requires a two-prong analysis to determine when a piece comes within the statute's protective ambit. See Carter, 71 F.3d at 84. Under the first or "positive" prong, VARA safeguards only "work[s] of visual art," a term which includes a "sculpture, existing . . . in a single copy." 17 U.S.C. § 101.

The second or "negative" prong specifically excludes from VARA those works classified as a "poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audio-visual work . . . merchandising item . . . work made for hire. . . ." 17 U.S.C. § 101. Given this definition, it seems clear that the Work qualifies definitionally under VARA. It is a sculpture existing in a single copy and does not fall into any of the statutorily prohibited categories. No parties to the suit, furthermore, contest this. Accordingly, this Court holds that this Work constitutes a "work of visual art" as defined in VARA.

Myers is seeking to use VARA to enforce his right of "integrity," i.e., the right to protect the Work from modification or destruction which would prejudice his artistic honor or reputation. Regarding the artist's moral right of integrity, VARA specifies that artists

Myers has not invoked the right of attribution. Indeed, in his Affidavit submitted to the Court in support of his motion for summary judgment, Myers states "[m]y only interest in defending my work is the integrity of my reputation as an artist." (Myers Aff. ¶ 23.)

subject to the limitations set forth in 113(d), shall have the right —
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C. § 106A(a)(3).

The substantial protections contained in subsections (A) and (B) foster the protection of the moral right of "integrity." H.R. Rep. No. 101-514 at 6 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6924.

The statute clearly states that while these rights are waivable, they are not transferable and attach to and remain with the individual artist for the duration of his life. 17 U.S.C. § 106A(e)(1) ("The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in an written instrument signed by the author.").

As the statute explicitly notes, however, 28 U.S.C. § 113 (d) carves out several key exceptions to the substantial rights granted in subsections (A) and (B) of § 106A above: those works incorporated in or made part of a building. Indeed, VARA contemplates a different scheme of protection in this situation. § 113(d) reads:

(1) In a case in which —

(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date [6/1/91] set forth in . . . the Visual Rights Act, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.
(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106(a)(3) shall apply unless —
(A) the owner has a made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.
17 U.S.C. § 113 (d) (emphasis added).

Section 610 of VARA directs that the effective date of the statute is six months from enactment. See Pub.L. 101-650. As VARA was enacted into law on December 1, 1990, the effective date is June 1, 1991.

Clearly, Congress meant to separate works fitting the definition of § 113(d) into two different categories, namely removable and non-removable "works of visual art." See, e.g., Keith A. Attlesey, The Visual Artists Rights Act of 1990: The Art of Preserving Building Owners' Rights, 22 Golden Gate U. L. Rev. 371, 385 ("[T]he distinction between removable and non-removable art is vital because the determination of whether a work is removable or not will have drastically different effects on building owners' and artists' rights.") Thus, subsection (d)(1) contemplates one scheme of protection for non-removable works, i.e., those works whose removal from the building would cause their physical destruction, distortion or mutilation. Subsection (d)(2), on the other hand, concerns removable works whose removal from the structure would not destroy, distort or mutilate them.

The statute generally affords lesser protections to "removable" works than "non-removable" ones. Indeed, if an artwork is removable, a building owner need only provide notice to the artist. Should the artist not arrange for the removal of the work in question, then § 113(d)(2) dictates that the artist loses all rights conferred in (A) and (B) of 106A(a)(3) — thus allowing the building owner to destroy the work. However, for non-removable pieces, the premise is that the artist does enjoy the rights granted in §§ 106A(a)(3)(A) and (B), unless the installation occurred with the artist's consent and before June 1, 1991, VARA's effective date.

The issue at hand, then, is whether the Work is removable or non-removable. The Board argues that the Work cannot be removed without destroying or mutilating the Work, thus placing the Work under § 113(d)(1). To bolster its argument, the Board relies on a passing reference in its Complaint to an engineer's report, which it has not submitted, and to conclusory allegations in its Brief. See, e.g., Pl. Memo. of Law in Oppos. at 5 (stating that "logic and common sense show that Myers' claim is wrong" but failing to cite any affidavit or supporting documentation in the record to demonstrate why Myers' contentions are incorrect and why the Board's are correct). Under this subsection, the Work would be exempted from VARA protection since it was clearly installed with Myers' consent in 1973 — before the effective date of VARA on June 1, 1991. Myers maintains that the Work is removable without its destruction. His only support for this contention is a reply affidavit submitted along with his reply Brief. See Myers Reply Aff. ¶ 5. Under this theory, § 113(d)(2) would apply.

The record does not contain any evidence regarding the Work's removability. The Court finds that the Plaintiff's argument is not supported by any documentation or other corroborating evidence in the record. The affidavit of David R. Topping, the Vice President of the Board states conclusorily:

While the Board's Complaint references an engineering report prepared by Rand Engineering, P.C., written in 2000 after three years of investigation (Compl. ¶¶ 38-40), that report is not contained in the Board's motion for summary judgment, nor argued therein.

"So far as I am aware, however, no one with an architectural or engineering background takes the position that the Building's wall can be repaired properly without first removing the components that make up Mr. Myers' work of art (i.e. the steel braces that were affixed to the building in the 1940's and the perpendicular aluminum rods that Mr. Myers bolted to those braces in or about 1973), and then extensively refurbishing the Building's masonry." Topping Aff. ¶ 28.

Likewise, the Court finds that Myers' contention that the Work is removable without its destruction has no independent evidentiary support. In his Brief, Myers states conclusorily that "[t]o remove the elements of Myers's art work from the wall to which they are affixed would not result in the work's destruction" and "[u]nquestionably these beams can be temporarily and subsequently replaced without destroying the Wall." Myers Memo. of Law at 9-10. Other than Myers' self-serving Reply Affidavit (Myers Reply Aff. ¶¶ 5, 6), Myers cites no evidence supporting these contentions.

Myers further argues that the word "remove" and its derivatives ("removed" and "removing") contained in the statute are ambiguous. Specifically, Myers argues that "removal" in § 113(d) fails to differentiate between "temporary" and "permanent" removal. "To remove the elements of Myers's [sic] art work from the wall," Myers notes in his legal Brief, "to which they are affixed would not result in the [W]ork's destruction, so long as the removal were temporary." Myers Memo. of Law at 9. However, to remove the Work permanently, Myers contends, would be tantamount to the Work's destruction. Through this characterization, Myers clearly seeks to avoid the application of § 113(d)(1)(A), which would, if applied to the Work, vitiate any VARA rights he may otherwise possess, and instead seeks to invoke § 113(d)(1)(B).

What Myers fails to appreciate, however, is that "remove" is not the operative word or concept in either §§ 113(d)(1) or (2). Instead, these provisions focus on the consequence of the removal. Thus, the question that needs to be addressed is whether the removal, which has already occurred, resulted in the "destruction, distortion, mutilation, or other modification of the work as described in § 106A(a)(3)" and addressed in § 113(d)(1)(A) — or whether the removal is such that it avoided "the destruction, distortion, mutilation, or other modification . . ." which is addressed by § 113(d)(2). Thus, Defendant Myers' focus on the alleged ambiguity of the word "remove" is misplaced.

Even were the word "remove" at issue, the Court finds that the word as it appears in the statute is not is at all ambiguous. The hallmark principle of statutory interpretation focuses on the words of the statute, and such words are presumed to carry their quotidian, common-sense meaning. Greenery Rehabilitation Group, Inc. v. Hammon, 150 F.3d 226, 231 (2d Cir. 1998). If that meaning is unambiguous, "judicial inquiry should end, and the law interpreted according to the plain meaning of its words." Aslandis v. U.S. Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993). "Remove" means "[t]o move from a position occupied . . . [t]o convey from one place to another." Webster's II, New Riverside University Dictionary (1994). Nowhere in the definition of "remove" does the temporality of the act of removal arise. Furthermore, there are no temporal adjectives modifying "remove" in the statute such as "temporary" or "permanent." As such, it is clear to the Court that what Congress intended in bifurcating § 113(d)'s protections was to separate removal situations based not on the temporality of the removal but on the consequences of removal. Finally, Myers apparently misunderstands the very point of the statute; it is not, as he seems to believe, to preserve a work of visual art where it is, but rather to preserve the work as it is.

The Court perceives this misapprehension in the very analogy that Defendant Myers uses to illustrate his legal argument. In his Brief, he likens the current situation to "removing a painting from a museum wall for conservation or restoration purposes and then replacing it afterward." Myers Memo. of Law at 9. But if the painting is taken down by the museum, it still exists; it has not been modified or destroyed. In this painting analogy, VARA would protect the existence of the painting, i.e., to save it from mutilation, distortion, or destruction. It would not, however, require the exhibitor to return it to the very place where it is hung. Indeed, Congress recognized the importance of presentation as the legislative history of VARA demonstrates: "Generally, the removal of a work from a specific location comes within the exclusion [that exempts certain acts from constituting a modification of a work of visual art] because the location is a matter of presentation . . ." H.R. Rep. No. 101-514 at 17 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6927. Presentation is left to the exhibitor; VARA only ensures that the Work is not mutilated or destroyed by him.

In conclusion, after having thoroughly examined the parties' submissions, the Court finds that the record contains no evidence addressing the consequences of removing the Wall. Accordingly, both Plaintiff's and Defendant Myers' motions for summary judgment based on VARA are DENIED.

C. New York's Artists' Authorship Rights Act ("AARA")

The Board and Myers also dispute the application of AARA, which extends certain legal protections to works of visual art. In their respective summary judgment motions, the Board seeks a declaratory judgment that AARA does not prevent the permanent removal or destruction of the Work from 599 Broadway, see Pl. Memo. of Law at 7-8, while Myers, on the other hand, urges this Court to require the Board to restore the Work because he argues that AARA applies to the Work and bars its removal or destruction. See Myers Memo. of Law at 14.

The statute, enacted by the New York state legislature in 1984, states in pertinent part:

1. . . . on and after January first, nineteen hundred eighty-five, no person other than the artist or a person acting with the artist's consent shall knowingly display in a place accessible to the public . . . a work of fine art . . . in an altered, defaced, mutilated or modified form if the work is displayed . . . as being the work of the artist, or under circumstances under which it would reasonably be regarded as being the work of the artist, and damage to the artist's reputation is reasonably likely to result therefrom. . . .
2.(a) . . . the artist shall retain at all times the right to claim authorship, or, for just and valid reason, to disclaim authorship of such work. The right to claim authorship shall include the right of the artist to have his or her name appear on or in connection with such work as the artist . . . Just and valid reason for disclaiming authorship shall include that the work has been altered, defaced, mutilated or modified other than by the artist, without the artist's consent, and damage to the artist's reputation is reasonably likely to result or has resulted therefrom. . . .
3. (e) [t]he provisions of this section shall apply only to works of fine art . . . knowingly displayed in a place accessible to the public. . . .

N.Y. Arts Cult. Aff. Law § 14.03.

Like VARA, New York's statute has codified and granted to certain artists the moral rights of "attribution" and "integrity". See Nimmer on Copyright §§ 8D.08[A] and [B] at 8D-105-107. As both the state and federal statutes appear to confer substantially similar rights, the Court must first turn to the question of pre-emption.

The Court notes at the outset that the Second Circuit has not addressed VARA's pre-emptive scope. See Wojnarowicz v. Am. Family Assoc., 745 F. Supp. 130, 136 (S.D.N.Y. 1990) (discussing VARA before its enactment and finding that it "would arguably preempt state laws such as the New York Authorship Rights Act which currently provide[s] similar rights [to VARA], demonstrating that Congress does not currently view the various state `moral rights' laws, including New York's, as preempted by the Copyright Act"); see also Pavia v. 1120 Avenue of the Americas Assocs., 901 F. Supp. 620, 625 (S.D.N.Y. 1995) (stating that "whether the rights conferred by VARA are equivalent to those of § 14.03 `will occupy courts for years to come . . .'" but declining to reach the pre-emption argument because the violation occurred before VARA's enactment) (citation omitted). Here, since the alleged violation occurred after VARA's effective date, the Court must address the question.

Article VI of the Constitution provides that the laws of the United States shall "be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. The Constitution thus requires that "any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield." Felder v. Casey, 487 U.S. 131, 138 (1988) (citation omitted). As the Supreme Court has noted, however, "[t]his relatively clear and simple mandate has generated considerable discussion in cases where we have had to discern whether Congress has pre-empted state action in a particular area." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540-41 (2001). Under the doctrine of pre-emption, Congressional purpose is the "ultimate touchstone" of a court's focus and inquiry. Id. at 541 (citingCipollone v. Ligget Group, Inc., 505 U.S. 504, 517 (1992)).

Ascertaining Congressional intent is made easier by the inclusion of a pre-emption clause in VARA. When a statute contains such an express clause, "the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent." CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664 (1993). A court should look to the statute's structure for interpretive guidance as well. Id. (noting "[e]vidence of pre-emptive purpose is sought in the text and structure of the statute at issue"). VARA's pre-emption clause, as well as the remaining provisions of the statute, are codified in the copyright section of the United States Code. See generally 17 U.S.C. § 101 et seq. The statute's pre-emption clause reads:

(1) On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equivalent to any rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State.
(2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to —
(A) any cause of action from undertakings commenced before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990;
(B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art or;
(C) activities violating legal or equitable rights which extend beyond the life of the author. 17 U.S.C. § 301 (f).

From the text and structure of the statute, Congress clearly intended pre-emption analysis under VARA to track that of copyright in general.See H.R. Rep. No. 101-514 at 21 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6931 ("Section 5 [the preemption clause] of the bill follows the principles set forth in . . . the preemption section of the Copyright Act"); see also Nimmer on Copyright § 8D.06[F] [2] at 8D-93-94 ("Construction of this [pre-emption] provision should presumably follow the general jurisprudence of copyright pre-emption"). Indeed, not only did Congress place VARA's pre-emption clause within the copyright title's own pre-emption provision, but it also utilized nearly identical language to describe the scope of VARA's pre-emptive reach. Thus, copyright pre-emption analysis is determinative of the scope of VARA's pre-emption clause.

Compare 17 U.S.C. § 301 (a) ("Thereafter, no person is entitled to any such right [within the general scope of copyright] or equivalent right in any such work under the common law or statutes of any State.") with 17 U.S.C. § 301 (f) ("Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or any statutes of any State.").

As Congress noted in the legislative history of VARA, the statute pre-empts a state law if two conditions are met: 1) if the work to which the rights under the state statute falls within the "subject matter" of copyright as specified in 17 U.S.C. § 102 and 103 and 2) if the right is the same or "equivalent" to those granted by VARA. See H.R. Rep. 101-514 at 21 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6931; see also Harper Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195 (1983), rev'd on other grounds, 471 U.S. 539 (1985) (detailing the two part analysis, nearly identical to that stated above for VARA, for pre-emption under the Copyright Act).

First, VARA's legislative history expressly directs that the rights sought to be vindicated under state law must fall within the "subject matter" of §§ 102 or 103 of the copyright title. These two sections broadly define the scope of copyrightable material. As § 103 deals solely with compilations and derivative works, which are not at issue here, § 102 is the only applicable copyright section relevant to this discussion. It is beyond doubt that § 102 expressly includes within its definition of copyrightable material a sculptural work such as the one at issue here. See 17 U.S.C. § 102 (stating that "[c]opyright protection subsists . . . in original works of authorship in any tangible medium of expression . . . which includes . . . pictorial, graphic, and sculptural works"). AARA, thus, meets the first condition of pre-emption.

Second, AARA grants artists rights "equivalent" to those contained in VARA. VARA's text unequivocally strips any person of all legal and equitable rights and their equivalents under state common law or state statutes except for those moral rights expressly granted under VARA. Such "equivalence" language in copyright analysis has essentially served to pre-empt state laws broadly — even those which are more protective in scope than the federal statute. Indeed, the legislative history of VARA clearly supports this:

See Nimmer on Copyright § 1.01[B] [1] at 1-12 ("Thus, in essence, a right that is the `equivalent of copyright' is one that is infringed by the mere act of reproduction, performance, distribution, or display. The fact that the state-created right is either broader or narrower than its federal counterpart will not save it from pre-emption.").

[I]f a State attempted to grant an author the rights of attribution or integrity for works of visual art as defined in this Act, those laws will be preempted. For example, the new law will preempt a State law granting the right of integrity in paintings or sculpture, even if the State law is broader than Federal law, such as by providing a right of attribution or integrity with respect to covered works without regard to injury to the author's honor or reputation. H.R. Rep. No. 101-514 at 21 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6931. (emphasis added).

Thus, any state statute enacted to protect artists' moral rights, specifically those of attribution or integrity (and even those which afford greater protections to artists), would be pre-empted by VARA.

Myers argues that AARA is not pre-empted by VARA. Specifically, he contends that 1) AARA does not contain a provision regarding works of art on buildings; 2) it contains no provision regarding the effect of a transfer of title; 3) it applies regardless of when the work was completed as long as it was publically displayed after 1985; 4) the primary purpose of AARA is to prohibit the "public display" of distorted works where VARA protects works displayed publically or not; 5) AARA applies to all works of art while VARA carves out some key exemptions; 6) AARA contains no "recognized stature" requirement; 7) AARA contains no time limit on the rights it confers, compared with VARA's automatic termination of rights upon the death of the author; and 8) courts have held that VARA does not pre-empt AARA. See Myers Memo. of Law at 15.

Addressing Myers' first two arguments, as discussed above, this Court notes that Congress has already unequivocally stated that pre-emption occurs even when the state statute has a broader application. As long as the two conditions for pre-emption are met, the statute must give way to VARA regardless of its relation in scope to the federal statute. The third objection fails because the plain language of the statute makes clear that VARA does not pre-empt any cause of action undertaken before VARA's commencement in 1991, but does pre-empt any cause accrued thereafter under a state-granted moral right, which is equivalent to VARA's protections. 17 U.S.C. § 301 (f)(2)(A). Myers' fourth objection misstates the purpose of AARA; the statute does not prevent the public display of a mutilated artwork but rather protects the artist when such display might prove detrimental to his reputation. These rights are clearly the same or equivalent to those which VARA seeks to protect and are thus pre-empted.

Myers' fifth objection fails because the law does not encompass all works of art but rather applies only to works of "fine art." Indeed, the rights of attribution and integrity in §§ 14.03.1 and 14.03.2(a) are "limited by subdivision three of this section," which reads, in pertinent part, that "[t]he provisions of this section shall apply only to works of fine art. . . ." N.Y. Art Cult. Aff. § 14.03. The sixth objection again misreads the law; VARA actually does not require that a work be of "recognized stature" for its protection to inure in the artwork. Instead, VARA actually grants a stronger right than AARA to certain artists to prevent the outright destruction when works of visual art have achieved a certain stature. See Joseph Zuber, The Visual Artists Rights Act of 1990: What It Does, and What It Preempts, 23 Pac. L.J. 445, 465 (1992) ("It is significant that the New York statute, on its face, does not prohibit the destruction of works of art.").

Myers' seventh objection fails as well since VARA explicitly exempts from pre-emption those state statutes that grant rights beyond the life of the author. Those same statutes would, nevertheless, be pre-empted during the author's life, if such rights fall within VARA's pre-emptive scope. Only after the termination of VARA's protections would such causes of action again be available at common law or under a state moral rights statute.See 17 U.S.C. § 301 (f)(2)(C) (explicitly not pre-empting "activities violating legal or equitable rights which extend beyond the life of the author."); Nimmer on Copyright § 8D.06[E] at 8D-87 ("Congress decided not to pre-empt post mortem moral rights asserted under state law."). Moreover, Myers further misreads VARA as § 106A explicitly grants to those works of visual art, like the Work, created before VARA's effective date a term of protection commensurate to those of general copyright protection, which lasts longer than the life of the author. See 17 U.S.C. § 106A ("With respect to works of visual art created before the effective date [of VARA] . . . but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire, at the same time as, the rights conferred by section 106.").

Finally, the three cases cited by Myers in his Brief all have dealt with whether AARA was pre-empted by the Copyright Act of 1976 and not VARA. See Pavia v. 1120 Avenue of the Americas Assocs., 901 F. Supp. 620, 626-27 (S.D.N.Y. 1995) (holding that AARA was not pre-empted by the Copyright Act of 1976 and that because the cause of action arose before VARA's effective date, VARA was not implicated — a fact which obviated the need for preemption analysis under § 301(f)); Schatt v. Curtis Management Group, Inc., 764 F. Supp. 902, 911 n. 14 (S.D.N.Y 1991) (holding only that the Copyright Act of 1976 did not pre-empt AARA); Wojnarowicz v. Am. Family Assoc., 745 F. Supp. 130, 135-136 (S.D.N.Y. 1990) (same). Indeed, Wojnarowicz explicitly states that VARA's passage "would arguably preempt state laws such as" AARA. Wojnarowicz, 745 F. Supp. at 136 n. 12. Accordingly, Myers' arguments regarding VARA's pre-emption of AARA are without merit.

AARA was passed to protect the moral rights of artists; its provisions clearly address the rights of attribution and integrity, just as VARA does. Indeed, on the right of integrity, VARA gives the artist the right to prevent the "distortion, mutilation, or other modification," including in some cases destruction, of his work when these distortions would prejudice the artist's reputation; AARA protects works from being publicly displayed in an "altered, defaced, mutilated or modified" form if such acts would tend to damage the artist's reputation. 17 U.S.C. § 106A(a)(3); N.Y. Arts Cult. Aff. § 14.03. These nearly identical provisions clearly act to safeguard the integrity of an artist's reputation.

Several commentators have explicitly traced New York's moral rights law back to the right of integrity. See, e.g., Edward J. Damich,The New York Artists' Authorship Rights Act: A Comparative Critique, 84 Colum. L. Rev. 1733, 1741-42 (1984) (analyzing the scope of AARA's grant of a right of integrity); Edward J. Damich, The Visual Artists Rights Act of 1990: Toward a Federal System of Moral Rights Protection for Visual Art, 39 Cath. U. L. Rev. 945, 961-63 (1990) (discussing VARA's protections of artistic integrity).

This Court finds that the integrity rights granted by both statutes are "equivalent." See Zuber, The Visual Artists Rights Act of 1990, 23 Pac. L.J. at 504 ("Since the New York statute provides no substantive protection in this area that is not provided under the 1990 Act, it appears that the 1990 Act preempts the New York version of the right of integrity.").

The Court notes that the attribution rights contained in the two statutes are also "equivalent." AARA grants artists the ability to claim authorship of a work or to disclaim it when "that work has been altered, defaced, mutilated or modified" without the artist's consent. N.Y. Arts Cult. Aff. § 14.03. This provision of the New York law clearly parallels VARA's grant to visual artists of a right "to claim authorship of that work, and . . . to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification." 17 U.S.C. § 106A(a). These protections go to the heart of attribution. See Damich, The New York Artists' Authorship Rights Act, 84 Colum. L. Rev. at 1743-44 (discussing AARA in terms of its protection of the right of attribution); Damich, The Visual Artists Rights Act of 1990, 39 Cath. U. L. Rev. at 958-60 (discussing VARA's protections of the right of attribution). Given the nearly identical provisions and purposes of the law, AARA's attribution rights seem to be equivalent to VARA's. See Joshua H. Brown, Creators Caught in the Middle: Visual Artists Rights Act Preemption of State Moral Rights Laws, 15 Hastings Comm. Ent. L.J. 1003, 1019 (1993) (noting that since both AARA and VARA "cover approximately the same subject matter, most applications of . . . [AARA's] attribution right will be preempted by VARA").

Further, AARA does not protect works from destruction. Myers attempts to remedy the statute's silence on the destruction issue by relying almost exclusively on a single, unreported state trial court opinion of no precedential value. Myers Memo. of Law at 11-13 (citing Newmann v. Delmar Realty Co., Inc., Index No. 2955/84 (Sup.Ct. N.Y. Co. Apr. 26, 1984)). However, Newmann occurred before the enactment of VARA, and it was resolved on property and contractual common law grounds. AARA was essentially dicta. Most importantly, however, the plaintiff in Newmann sought an injunction to finish the work, not to restore it. As the trial judge noted, AARA did not in any way serve to guarantee the survival of Newmann's art, only its unfinished condition in the public eye. Id. at 9 ("Whether plaintiff will choose to complete the work at the risk of its subsequent obliteration is for him to decide.") (emphasis added).

Unreported or unpublished decisions, "[a]lthough entitled to respectful consideration," have "little (or no) precedential value."Dubai Islamic Bank v. Citibank, N.A., 126 F. Supp. 659, 669 (S.D.N.Y. 2000) (citations omitted). For an examination of the public policies motivating such a rule, see Yellow Book of N.Y. L.P. v. Dimilia, 729 N.Y.S.2d 286, 287-89 (N.Y. Dist. Ct. 2001) (noting, among other things, that other than the "persuasiveness" of an unreported case's reasoning, there is little value in such a decision).

Since Myers' remaining case citations are similarly inapposite, he can point to no statutory language or case law that would effectively extend AARA's provisions to safeguard the Work in the context of its complete removal or destruction. In sum, this Court finds as a matter of law, Myers' claim under AARA cannot stand because VARA pre-empts the state statute and because AARA simply cannot be invoked to prevent the outright destruction of a work of art. Accordingly, Plaintiff's summary judgment motion with respect to AARA's inapplicability in the present case is GRANTED and the Defendant's cross motion is DENIED.

Wojnarowicz v. Am. Family Assoc., 745 F. Supp. 130 (S.D.N.Y. 1991), stands solely for the proposition that AARA protects a photographer from a person who took fragments of the photographer's prints and placed them into a pamphlet. In so doing, the pamphleteer altered and distorted the images in violation of AARA. Id. at 138-141. Nowhere is there mention of the destruction of artwork. Similarly, Schatt v. Curtis Management Group, Inc., 764 F. Supp. 902 (S.D.N.Y. 1991), involved an artist's right to claim authorship of photographs he took that were used without attribution. There was no mention in the case of destruction. These citations merely point out the use of AARA as a protective aegis for artists whose works are distorted or altered in the public eye, but not destroyed altogether.

D. The Lanham Act

Myers has brought a counterclaim against the Board under two provisions of the Lanham Act, 15 U.S.C. § 1125, seeking the right to compel the Work's restoration because the purported use of the Work by the Board in the early 1980s constitutes an improper dilution of a famous trademark and because the mutilated condition of the Work after the 1997 removal of the easternmost column of braces detrimentally affected his artistic reputation. See Myers Memo. of Law at 16. Given these violations, Myers seeks an injunction to require the restoration of the Work to 599 Broadway's northern wall. The Board opposes both theories of this counterclaim, asserting that the Lanham Act has no application to the Work. See Pl. Memo. in Oppos. at 10-12.

1. False designation claim or misrepresentation § 1125(a)

Section 43(a) of the Lanham Act, codified as 15 U.S.C. § 1125 (a) provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, which —
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125 (a).

The underlying purpose of § 1125(a) is the protection of competitors and the public from misleading and false advertising. See EMI Catalogue Partnership v. Hill, Holiday, Connors, Cosmopulos, Inc., 228 F.3d 56, (2d Cir. 2000) ("The purpose of this section is `to prevent consumer confusion regarding a product's source . . . and to enable those that fashion a product to differentiate it from others on the market.'") (quoting Centaur Communications, Ltd. v. A/S/M Communications, Ltd., 830 F.2d 1217, 1220 (2d Cir. 1987)).

Myers relies on Gilliam v. Am. Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976), where the Court of Appeals held that the American Broadcasting Corporation ("ABC"), which had abbreviated and altered skits of the British comedic troupe Monty Python for a primetime special, violated the group's artistic rights as protected by § 1125(a). ABC's abridged program, the Second Circuit reasoned, had threatened to misrepresent Monty Python's artistic integrity and distort the troupe's comedic sketches to the public at large. From this, Myers reads Gilliam to be a "far-reaching, broad and influential" opinion which held that "artists have a non-commercial moral right to protect their work under the Lanham Act." Myers Memo. of Law at 17-18 (emphasis added).

The Board counters that Myers has misconstrued the applicability and implications of Gilliam. Specifically, it argues that Myers gives the opinion too broad an interpretation in asserting that the Lanham Act can be read to include "noncommercial" artistic rights because such an understanding would essentially require, in the Board's view, the negation of an essential element of the Lanham Act, namely the "in commerce" requirement. See Pl. Memo. in Oppos. at 10-11.

In analyzing the merits of the case and the arguments presented, the Court is guided by the fact that VARA's preemption clause makes clear that Congress intended VARA to preempt not only state statutes and common law which seek to protect visual artists' moral rights, but all other federal remedies as well. 17 U.S.C. § 301 ("On or after the effective date [of June 1, 1991], all legal or equitable rights that are equivalent to any of the rights conferred by section 106A with respect to works of visual art . . . are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections.") (emphasis added). It is, thus, patently clear to the Court that VARA is the sole remedy for artists seeking to protect the moral rights of attribution and integrity under state or federal law. Indeed, were Myers' reading correct — that Gilliam gave artists a noncommercial moral right to protect their works through § 1125(a) — pre-emption would be mandatory since VARA's pre-emption clause expressly pre-empts a federal right "equivalent" to the noncommercial moral rights VARA was codified to protect.

Moreover, even were this Court to assume, arguendo, that a Gilliam-type claim under § 1125(a) survived the enactment of VARA, the Work has been removed from 599 Broadway in its entirety. As such, the Lanham Act is inapplicable since there can be no false designation, misrepresentation, or confusion as the statute requires and Gilliam holds. Indeed, Gilliam properly interpreted § 1125(a) as protecting the intentional distortion whereby authorship or an artist's integrity might be confused by or misrepresented to the public at large. Gilliam, at 25 (holding that "the edited version broadcast by ABC impaired the integrity of the [group's] work and represented to the public as the product of [Monty Python] what was actually a mere caricature of their talents. We believe that a valid cause of action for such distortion exists" under the Lanham Act) (emphasis added); see also Schatt v. Curtis Management Group, Inc., 764 F. Supp. 902, 913 (S.D.N.Y. 1991) (holding that the Lanham Act helps "vindicate `the artist's personal right to prevent the presentation of his work to the public in a distorted form.'") (quoting Gilliam, 538 F.2d at 24). Since the Work has been entirely removed from 599 Broadway's northern wall and is accordingly no longer publicly displayed, there no longer exists the possibility of confusion or distortion to the public at large — the very things the Lanham Act seeks to protect. Given the current situation, then, it is clear from the record that Myers has no claim under 15 U.S.C. § 1125 (a).

Accordingly, the Plaintiff's motion for summary judgment on the Lanham claim under § 1125(a) is GRANTED, and the Defendant's motion on the same issue is DENIED.

2. The Anti-Dilution Provision, 15 U.S.C. § 1125 (c)

The second portion of the Lanham Act that Myers invokes to protect his Work is § 1125(c), the federal anti-dilution provision. While Myers never formally pled a cause of action under Section 43(c) of the Lanham Act, codified at 15 U.S.C. § 1125 (c), he raises it for the first time in his Brief. Despite this untimely argument, the Court nonetheless will address the issue.

As the Board did address this argument in their submissions, the Court finds that in the interests of justice and judicial efficiency, this Opinion should address the merits of this claim.

Section 1125(c) reads in pertinent part:

The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark. . . . 15 U.S.C. § 1125 (c).

The Court notes that "dilution" under the Lanham Act does not require that such use detrimentally affect the competitiveness of the trademark owner nor create the likelihood of confusion, mistake, or misrepresentation. See 15 U.S.C. § 1127. The owner need only demonstrate that another has used the trademark in commerce. Indeed, as the legislative history makes clear, the anti-dilution provision's purpose was "to protect famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it, even in the absence of a likelihood of confusion." H.R. Rep. No. 104-374 at 3 (1995), reprinted in 1995 U.S.C.C.A.N. 1029, 1030. Finally, the text of the statute expressly limits a court's power to redress any violations found under § 1125(c); the statute entitles the owner of a famous mark only to an injunction to prevent further violations of the law.

In asserting a claim against the Board under the Lanham Act, Myers alleges that the violation of § 1125(c) occurred in 1984 when the Board issued its Offering because the cover featured a graphic representation of one of the Work's braces. Myers Memo. of Law in Oppos. at 8. The Court is mindful that over twenty years have passed since the cause of action allegedly arose and that more than a decade and a half separates the purported violation and Myers' assertion of the counterclaim against the Board. This raises the question of whether this Lanham Act violation pled by Myers is time-barred by the statute of limitations.

The Offering is dated May 28, 1982; however the cover page explicitly states that the Offering can be used until March 31, 1984. (Topping Aff., Exh. 18). The Court assumes, arguendo, that the expiration date of March 31, 1984 marks the last date of the use of the Offering by the Board. There is no evidence offered by either side that suggests otherwise.

Although there is not an explicit statute of limitations under the Lanham Act, the Second Circuit has held that a court must "look to `the most appropriate' or `the most analogous' state statutes of limitations" to determine the relevant time period. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996). The most analogous New York statute is the state's anti-dilution law, codified at N.Y. Gen. Bus. § 360-1, which carries a three-year limitations period. See Charles Atlas, Ltd. v. DC Comics, 112 F. Supp.2d 330, 334 n. 7 (S.D.N.Y. 2000) (citing De Medici v. Lorenzo DeMedici, Inc., 101 A.D.2d 719, 720 (1st Dep't 1984)). Accordingly, the relevant statute of limitations for an anti-dilution claim under the Lanham Act is three years.

In its pleadings and motion papers, Plaintiff Board never raises the issue of the statute of limitations as an affirmative defense. The Second Circuit has indicated that as a general rule "[i]f a defendant fails to assert the statute of limitations defense, the district court ordinarily should not raise it sua sponte." Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987). The Circuit Court, however, has expressly held that "no absolute bar to the consideration of such claims [including affirmative defenses contained in Fed.R.Civ.P. 8(c)] exists." Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993).

The Court raises the issue sua sponte because of the unique circumstances in this case that warrant dismissal of this claim. First, the Court looks to the claim's procedural posture. Myers never mentioned the anti-dilution claim in any of his pleadings. Indeed, in the original counterclaim filed by Myers, the only Lanham Act violation pled then was the misrepresentation claim under § 1125(a). Given this, the Board had no notice of the claim until Myers first raised the issue in his summary judgment papers. It is thus unclear how the Board could have waived its affirmative defense here when the claim was never pled. Second, the Supreme Court has noted that statutes of limitations "are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost." Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945). Myers prejudiced the Board in litigating this stale claim over a decade after its occurrence and in denying the Plaintiff an ability to supplement the record, conduct discovery, and oppose the claim. Myers has essentially slept on his rights. See United States v. Marion, 404 U.S. 307, 323 n. 14 (1971) (noting that statutes of limitations "`are primarily designed to assure fairness to defendants [since c]ourts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights'") (quoting Burnett v. New York Central R. Co., 380 U.S. 424, 428 (1965)). Accordingly, this Court finds that the dilution claim under the Lanham Act is time-barred by the statute of limitations since Myers waited over fifteen years to bring his claim, did not plead it in his Answer with Counterclaims, and raised it for the first time in his Motion for Summary Judgment.

Moreover, even were the statute of limitations deemed to have been waived, the statute itself states that an action under § 1125(c) is redressed solely through the exercise of the district court's equitable powers to enjoin the further offending use of the trademark. Indeed, "[a]n injunction, in trade-mark cases, must be framed to protect plaintiff's right to free enjoyment of its registered mark," and its provisions "are proper if they are reasonably calculated to protect plaintiff against continued violation of its registered mark." Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 308 F. Supp. 439, 495 (S.D.N.Y. 1969). Myers, however, has proffered no evidence that the Board has used the Work in commerce since 1984. Instead, he asserts that the 1982 brochure is evidence of the improper commercial use of a famous, if unregistered, trademark. Yet the remedy he seeks is not an injunction against the further unlawful dilution of a famous mark, but rather for the Court to order the Board to restore the Work to the northern wall of 599 Broadway for this alleged dilution violation.

The Court finds the connection between the alleged violation and the redress sought wholly untenable. The statute cannot be read as Myers wants and, on the facts of this case, does not provide any remedy for him. Accordingly, this Court finds that neither §§ 1125(a) nor 1125(c) gives the Defendant any cause of action as a matter of law. The Court hereby GRANTS Plaintiff's motion for summary judgment on the Lanham Act claims and DENIES Defendant's cross motion.

E. Easement in Gross

Myers' remaining counterclaims look to state common law for redress. Specifically, his fourth counterclaim asserts that a 1973 writing by Tanenbaum, the then-owner of the Building, constitutes an easement in gross through which he has obtained the right to the restoration and continued display of the Work on the northern wall of 599 Broadway. He moves the Court to declare that he has an easement over the wall through which he can compel the restoration of his Work. See Myers Memo. of Law 20-24. The Board opposes this motion, claiming that Myers cannot establish the requirements to create an easement. Plaintiff argues that, at most, the 1973 letter creates a revocable license that the Board can at any time extinguish, and accordingly, moves the Court to dismiss the claim as a matter of law. See Pl. Memo. of Law at 10-11.

The question of title and ownership over the Work is one that the parties to this motion vigorously dispute. According to Myers, he is the sole owner of the Work and has never conveyed title or ownership of it to anyone. (Myers Counter 56.1 Stmt. ¶ 5.) Plaintiff contests this statement, asserting that "all of the evidence in the record on this motion supports the conclusion that Myers is not and never was the `owner of the [Work].'" (Pl. 56.1 Response Stmt. ¶ 5.) The Plaintiffs assert that no document exists that conveys title or ownership of the Work to Myers and that accordingly Myers could not have conveyed title to the Work or any of its components to anyone. (Pl. Response 56.1 Stmt. ¶ 6) Myers concedes that he has no document indicating any conveyance of title or ownership to any person, (Myers Counter 56.1 Stmt. ¶ 6); he has also submitted no documentation supporting his contention that he owns the Work or that he came to such an understanding with any of the other parties in this case. However, the Board also can show no document indicating that it owns the mural.

An easement generally entitles a party to an interest in the land owned by another person, consisting in the right to use or control the land for a specific and limited purpose. See Sutera v. Go Jokir, Inc., 86 F.3d 298, 302-303 (2d Cir. 1996) (citing Trustees of Southampton v. Jessup, 162 N.Y. 122, 126 (1900) and Bliss v. Greeley, 45 N.Y. 671, 674 (1871)). When an easement benefits a specific person rather than a piece of land, it is generally termed an "easement in gross," which is generally not transferable nor inheritable. See Saratoga State Waters Corp. v. Pratt, 227 N.Y. 429, 443 (1920) ("A pure easement in gross is, generally speaking, neither assignable nor inheritable and is personal to the grantee."); Henry v. Malen, 692 N.Y.S.2d 841, 845-46 n. 3 (3d Dep't 1999) (citations omitted). However, it differs from a license in that it implies an interest in land whereas a license merely confers "an authority to do a particular act or series of acts upon another's land, without possessing any interest therein." Pierrepont v. Barnard, 6 N.Y. 279, 286 (1852); Todd v. Krolick, 466 N.Y.S.2d 788, 790 (3d Dep't 1983) (same). Finally, a license is deemed revocable at any time. See Pierrepont, 6 N.Y. at 288 (noting that a license is "revocable at pleasure"); Sarfaty v. Evangelist, 530 N.Y.S.2d 417, 418 (4th Dep't 1988) (holding that absent a showing of proof of consideration, "the New York rule is that licenses with respect to real property are revocable at will"); Cioppa v. Turri, 323 N.Y.S.2d 520, 523 (N.Y.Sup.Ct. 1971) ("The well-settled doctrine of the common law is that a license in respect of real property is revocable at the will of the licensor, unless it is one coupled with an interest or made irrevocable by grant or contract. In other words, a naked license is revocable at the will of the licensor.").

To create an easement in gross, "there must be a writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an easement rather than a revocable license." Willow Tex, Inc. v. Dimacopoulos, 510 N.Y.S.2d 543, 544 (N.Y. 1986); see also Todd, 466 N.Y.S.2d 788, 790 (3d Dep't 1983) ("since an easement creates an interest in land, it is normally created by grant [in writing] or prescription.") (citing 17 N.Y.Jur., Easements and Licenses, § 14, pp. 265-266)). Moreover, in order for the easement to be perpetual, the writing "must establish unequivocally the grantor's intent to givefor all time to come a use of the servient estate to the dominant estate," thus advancing the policy favoring unrestricted and unencumbered use of real property. Willow Tex, 510 N.Y.S.2d at 544 (emphasis in the original). Finally, where there is "any ambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deemed a license, revocable at will by the grantor, rather than an easement." Id. (citing Huggins v. Castle Estates, 36 N.Y.2d 427, 430 (1975) and Crosdale v. Lanigan, 129 N.Y. 604, 610 (1892)).

Myers erroneously cites a decision purporting to support his contention that an easement "does not need to be created by a writing, but can be created by implication from the circumstances." Myers Memo. of Law at 20 (citing Inter Community Memorial Hosp. Bldg. Fund, Inc. v. Brown, 168 N.Y.S.2d 535 (1957)). However, there the writing already existed; in fact, the writing was an express grant of an easement. The question that the court in Inter Community resolved was whether the writing needed to describe the boundaries of the right of way. The court noted that "`[w]here an easement in land . . . is granted in general terms without giving definite location and description of it, the location may be subsequently fixed by an express agreement of the parties, or by an implied agreement arising out of the use of a particular way by the grantee and acquiescence on the part of the grantor.'" Id. at 537. Thus, the case does not stand for the proposition that an easement might be created in the absence of a writing but rather that, once an easement is established, its more particular terms can be determined by later agreements or by reasonable inference.

In interpreting a writing, the courts look to the language of the grant and, where necessary, the construction of such grant may be aided by looking to the surrounding circumstances. Wilson v. Ford, 209 N.Y. 186, 196 (1913); Henry, 692 N.Y.S.2d at 845-46. The language contained in the writing can be helpful in the determination; words, such as "grant", "convey", and "forever", and phrases, such as "his heirs and assigns," often demonstrate that an easement was intended. Henry, 692 N.Y.S.2d at 845-46.

The dispute here rests on the interpretation of the letter written by Tanenbaum in 1973 to the Board of Estimate. As noted earlier in this Opinion, Tanenbaum wrote that: "[t]his letter is my consent and authorization to City Walls, Inc. to use the north wall of the building located at 599 Broadway in the Borough of Manhattan, City and State of New York for the erection of an artistic project." (Pl. 56.1 Stmt. ¶ 13; Topping Aff., Exh. 10.)

In examining the letter, Tanenbaum never used express terms indicative of an easement. Unlike the express grant in Henry, the letter is simply devoid of any words such as "grant" or "convey." The 1973 writing does not grant anything to Myers but rather speaks of giving permission to City Walls for the use of the northern wall of 599 Broadway. Lastly, the letter does not set forth the duration of time for which the permission was given. The President of PAF, the successor to the City Walls, even conceded in a 1987 letter that "I am of course aware that the [Work] . . . was commissioned as a temporary work." (Topping Aff., Exh. 22 at P000069). There is no express language evincing an intent to create an easement in the writing, and regardless of what type of property interest, if any, were given in Tanenbaum's letter, Myers was certainly not the grantee.

The Board of Estimate, whose consent was required for the installation of the Work, granted in 1973 only a 10-year authorization for the Work's installation on 599 Broadway and no longer. (Topping Aff., Exh. 11 at P000039).

In his briefing papers, Myers claims that Tanenbaum created a "permanent easement in gross in favor of Myers and City Walls, Inc" in his May 2, 1973 letter to the Board of Estimate. Myers Memo. of Law at 20. However, he never explains how that letter, which never mentions "Myers" by name or implication, grants to Myers anything. Additionally, Myers does not explain in his papers how City Walls' rights that arose from the writing at issue here give him the right to sue.

Myers claims that this statement by Freedman does not bind Myers because Freedman is a "stranger to the grant." Myers Memo. of Law at 23. Here, Myers clearly misunderstands the words contained in the writing at issue. If an easement was given at all, it was to the party specifically mentioned in the letter, i.e., the party to whom Tanenbaum donated "use" of the northern wall of the Building. This party would be City Walls and its successor-in-interest PAF. Freedman's words, then, do carry weight as they indicate the belief of the grantee as to what the agreement between the parties was.

Other than a self-serving affidavit (Myers Aff. ¶ 3), Myers has proffered not a single document or piece of evidence which would corroborate his assertion that Tanenbaum not only granted to him specifically an easement in gross, but that Tanenbaum also intended that grant to be in perpetuity. Myers instead conclusorily states that he was intended to be the grantee despite never being explicitly (or impliedly) mentioned in the very instrument he claims created the easement. He further points to the fact that the letter "says nothing limiting [the alleged easement's] duration" is sufficient proof that Tanenbaum meant to create a easement for all time to come. Myers Memo. of Law in Oppos. at 9. The Court does not agree with Myers' argument. The New York Court of Appeals has made clear that grants intended to be perpetual should be "unequivocal" and indicate that the grant is "for all time to come." See Willow Tex, 510 N.Y.S.2d at 544. The lack of any express time period in the writing is fatal to Myers' assertion that Tanenbaum intended to encumber the land for all time to come because silence on the issue of duration cannot be said to be an "unequivocal" statement of the creation of a grant for "all time to come." The letter, otherwise, would contravene the policy of New York courts to avoid the encumbrance and alienation of land, especially when ambiguity exists as the Willow Tex decision holds. Indeed, when such ambiguity exists as to the nature and duration of a possible easement, Willow Tex instructs a court to presume that the right of use should be construed as a revocable license and not an easement in gross.

Given the above, it is obvious that Myers rests his arguments on mere speculation and has failed, in light of the Board's documentation of particular facts in the record establishing that the writing was not a perpetual easement, to set forth specific facts showing that a genuine issue of material fact exists here. See Williams, 781 F.2d at 323. Thus, the record shows that, as a matter of law, Tanenbaum granted City Walls (and not Myers) a license revocable at will.

For the foregoing reasons, this Court GRANTS Plaintiff's summary judgment motion as to the non-existence of an easement in gross and DENIES Defendant's cross motion on the same issue.

F. Easement by Prescription

Myers' final counterclaim asserts that even if Myers did not obtain an easement in gross from Tanenbaum for the display of the Work, he nevertheless "is entitled to a judgment declaring that he has an easement by prescription over, and the right to continued possession and use of, the north wall of the [Building]" for the continued display of the Work at 599 Broadway. Myers Ans. ¶ 74. The Board counters that Myers has not satisfied the required elements necessary to prove that he has acquired a permanent prescriptive easement. Pl. Memo. of Law at 14.

To establish an easement by prescription, a claimant bears the burden to prove, by clear and convincing evidence, that "the use . . . [was] adverse, open and notorious, continuous and uninterrupted for the prescriptive period." Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 511 (1952). In New York, the prescriptive period is 10 years. See N.Y. Real Prop. Acts. § 311; Tulley v. Bayfront North, Ltd., 286 A.D.2d 873, 873 (4th Dep't 2001) (holding that a claimant must prove his "use of the subject property was adverse, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years."); Casey v. Bazan, 678 N.Y.S.2d 371, 372 (2d Dep't 1998) (requiring that the claimant prove that "the subject property was used openly, notoriously, and continuously for the statutory period."). Traditionally, once a claimant demonstrates that the use was open, notorious, and continuous, "the presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive."Casey, 678 N.Y.S.2d at 372 (citations omitted).

The presumption of an adverse or hostile interest, however, does not apply in cases such as this where the use at issue began as permissive. Indeed, New York case law makes clear that when a property owner gives permission to another for a specific use of his property, such use cannot become adverse or hostile unless the claimant of the prescriptive easement expressly communicates to the owner a claim of right that is adverse to the owner's interest, at which time the claimant may then convert the permissive use to a hostile one, see Northtown, Inc. v. Vivacqua, 272 A.D.2d 917, 918 (4th Dep't 2000) (finding that because defendants' use was initially permissive in nature, "it was incumbent upon [claimants] to show the `assertion of a hostile right which is made known to the property owner.'") (citations omitted);Pickett v. Whipple, 629 N.Y.S.2d 489, 490-91 (3d Dep't 1995) ("If permissive use is established, it becomes incumbent upon the plaintiff to show that such use was transformed into an adverse one by an assertion of an adverse right that was made known to the landowner."); Van Deusen v. McManus, 608 N.Y.S.2d 569, 570 (3d Dep't 1994) ("[W]here permission can be implied from the beginning, no adverse use may arise until there is an assertion of a hostile right which is made known to the property owner."), or unless the owner or his successor repudiates or renounces his initial permission. See Hinkley v. State of New York, 234 N.Y. 309, 316 (1922) ("When the entry upon land has been by permission . . . from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right of the real owner.");Longshore v. Hoel Pond Landing, Inc., 727 N.Y.S.2d 518 (3d Dep't 2001) (same) (quoting Hinkley). Thus, permissive use can become hostile through either the adverse claimant's direct assertion of a hostile interest or the owner's repudiation of the initial permission.

Given this legal framework, the Court first turns to the issue of whether the initial use of the northern wall was permissive. Pointing to Tanenbaum's letter, dated May 2, 1973, Plaintiff Board argues that it was such. See Topping Aff., Exh. 10 (a letter in which Tanenbaum acknowledges his "consent and authorization to City Walls, Inc. to use the north wall of [599 Broadway]"). Indeed, seeking "permission for use from the record owner negates hostility." City of Tonawanda v. Ellicott Creek Homeowners Ass'n, Inc., 449 N.Y.S.2d 116, 124 (4th Dep't 1982); see also Wiseman v. Lucksinger, 84 N.Y. 31 (1881) (holding that a use is not adverse if there is permission by an owner to use his land). Myers does not deny this, and the Court similarly finds that the initial use was clearly permissive. Given that the use was permissive at its inception, Myers must demonstrate either that he has made a distinct and positive assertion of an interest hostile to the Board's or that the Board has repudiated its permission. Finally, regardless of how hostile use is created, Myers' adverse use must also have met all the remaining elements to establish a prescriptive easement.

The Board argues that "actual" possession of 599 Broadway's northern wall is required to convert his use into a prescriptive easement. Pl. Memo. in Oppos. at 16. The Board, however, relies on the erroneous assumption that actual possession is required in a prescriptive easement case. The New York Court of Appeals has made clear that it is otherwise: "In other words, as `the enjoyment of easements lies in use rather than in possession', the only physical conduct necessary for their acquisition by prescription is `making use' of a portion of another's land. . . ." Di Leo, 304 N.Y. at 511. It is thus arguable that Myers has made use of the portion of the Board's land, namely the wall upon which the Work sits, sufficient to meet the element of use; the question instead becomes whether or not the use was hostile for the prescribed statutory time period.

1. Assertion by Myers

For a permissive use to become hostile, a claimant must communicate to the owner an interest, which is adverse to the owner's. New York courts have determined that this express communication of an adverse interest must be a distinct and positive assertion that would provide notice to the owner of the existence of a hostile claim. See Durand v. Leigh, 222 N.Y.S.2d 215, 215 (4th Dep't 1961) (holding that if a use begins as permissive, its character as such "`will continue of the same nature, and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner, and brought home to him'") (quoting Moore v. Day, 191 N.Y.S. 731, 738 (3d Dep't 1921), aff'd 235 N.Y. 554 (1923)); see also Northtown, Inc., 272 A.D.2d at 918 (dismissing a claim of a prescriptive easement when claimants had failed to "present proof of any act on their part that would provide notice to plaintiff of a hostile claim of right to use plaintiff's portion of the driveway").

Since the initial use was indeed permissive, Myers correctly notes that the dispositive question focuses on "when such use became adverse to the interests of the owner." Id. In his papers, Myers claims that he unequivocally asserted his rights in the 1981 discussion with the lawyer of the Building's then-owner (Myers Aff. ¶ 20) and the 1987 letter he co-authored with his wife to the Board (Topping Aff., Exh. 23).

The Board maintains that the first time Myers ever expressly communicated a hostile interest to the Board occurred in 1997 when his attorney, Robert Altman, wrote two letters to the Board (Topping Exhs. 29, 30). Plaintiff argues that the evidentiary record is devoid of any evidence of a direct and unequivocal assertion by Myers prior to 1997 of a claim of right to use of the Building's northern wall, which would be hostile to the Board's interests. Pl. Memo. in Oppos. at 17. Under this theory, while adverse use did in fact arise, it would have only existed for three years before litigation commenced. As such, no prescriptive easement could thus be established.

In a conversation in 1981 with the attorney for the Building's then-owners, Myers claims that he "protested strenuously" against the proposed removal of the Work. (Myers Aff. ¶ 20). This, in and of itself, makes no claim to the north wall.

The 1987 letter which Myers wrote to the Building's owners also contains no unambiguous or positive statement of rights to the north wall, adverse to that of the Building's owners. In fact, nowhere in the letter does the word "right" appear; the tone of the letter is not hostile but conciliatory. See Topping Aff., Exh. 23 ("If you have any ideas or suggestions regarding this matter, please call, or perhaps we could arrange to meet . . . You will probably be surprised at how many people appreciate [the Work . . .] and would hate to think of its destruction.").

In its motion, the Board contends that Myers' communication of a hostile right to use the Building's northern wall did not occur until 1997 when Myers' attorney wrote letters on behalf of the artist, protesting the Board's intention to remove the Work. In these two letters, Myers directly stated to the Board that to remove the Work would violate Myers' "real estate rights" and that "Mr. Myers has rights of adverse possession with respect to the wall itself." (Topping Aff., Exh. 28 at P000149; Topping Aff., Exh. 29 at P000172). Taken together, these two letters contain unequivocal and direct statements, communicated directly to Plaintiff, of a right hostile to the Board's. As a matter of law, such language is sufficient to convert a permissive use into a hostile one, if this use extends uninterrupted for ten years. Thus, Myers has failed to create a genuine issue of material fact here. His hostile use of the Building's northern wall did not occur until 1997 and as such, as a matter of law, his claim to a prescriptive easement cannot stand.

2. Repudiation by the Board

As previously discussed, repudiation by the owner can transform an initially permissive use into a hostile one, sufficient to create a prescriptive easement so long as the other requirements are met. Myers argues that the Board or its predecessors converted the use from permissive to hostile when in 1982 (or alternatively in 1987), it sought to remove the Work. Specifically, Myers contends that the use became hostile in 1984 because the Board claimed in 1982 for "the first time that it had the right to remove the [Work in] two years." Myers' Memo. of Law at 24. Alternatively, he maintains that the use became adverse when the Board sought permission in 1987 from the Landmarks Commission to remove the Work permanently. Id. The Board does not address the repudiation argument in its papers as its Brief essentially maintains that a claimant to a prescriptive easement can only create hostility by direct assertion.

In examining both incidents in the light most favorable to the Board, the Court finds that there is no genuine issue of material fact regarding whether any of these occurrences effectively repudiated the initial permission of the Board. First, the 1982 Offering merely states that for two years the Building's owners and Myers had agreed to the continued display of the Work. It contains no language about removal nor even the possible renegotiation of the purported two-year agreement; there are similarly no express statements that would indicate that the use of 599 Broadway's wall for the public display of the Work was no longer permissive at the end of the two-year period or that the Board would then seek to remove the Work. Simply put, there is no evidence of repudiation by the Board.

Turning to the 1987 incident, Myers essentially argues that "when [the then-building agent] Mr. Riker went to the Landmarks Commission and was told that a hearing would be required [to remove the Work], the use became adverse then." Myers Memo. of Law at 24. However, the Board decided not to attempt to remove the Work. If the inquiry into removal constitutes repudiation, subsequent actions by the Board effectively withdrew the repudiation and the use continued to be permissive. See Topping Aff., Exh. 26 at P000104 (The Board's authorized agent wrote "[t]he result of these efforts [to restore the wall] will be that the art wall will not be removed; in fact it will be rejuvenated."). In 1997, the Board applied to the Commission for permission to remove the mural, and that application has not been withdrawn. Repudiation occurred thus in 1997. However, it is obvious that the ten-year limitations period has not been met and no prescriptive easement has been established.

In examining the record in the light most favorable to Myers, the Court finds that, as a matter of law, the Plaintiff's motion for summary judgment should be granted. The language of the Offering in 1984 contains no inference or suggestion that the Board had any desire to withdraw permission for the Work's display on 599 Broadway. In 1987, the Board even wrote to the PAF, indicating that the work done on 599 Broadway that year would "rejuvenate" the Work. Thus, both in 1984 and 1987, permissive use either never ended or was granted again so that the requisite hostility and time period elements cannot be established as a matter of law.

Myers makes the assertion that "[t]he fact that [the building's agent] then changed his mind does not convert a previously adverse use." Myers Memo. of Law at 24-25. However, he provides no case law to back such an extraordinary proposition. The Court is also not aware of any such precedent and notes instead the strong presumption in New York to avoid the alienation of property.
Neither Myers nor the Board address whether the prescriptive easement claimed by Myers is also against the City which owns the air rights above the sidewalk over which the Work stands.

In conclusion, the Court finds that the initial use of the Building's northern wall was permissive. As such, the first time that Myers stated in unequivocal terms that he had a right inimical to that of the Board was in 1997 when his attorney wrote to Plaintiff's managing agent; the first time the Board fully repudiated its permission for the Work's installation on the Building's northern wall also occurred in 1997. Accordingly, the Plaintiff's motion to dismiss the counterclaim of a prescriptive easement is GRANTED, and the Defendant's cross motion is DENIED.


For the foregoing reasons, this Court finds that both the Plaintiff's and Defendant Myers' motions for summary judgment on the VARA claim are DENIED. The Court further finds that the Plaintiff's motion for summary judgment as to the AARA claim and as to Myers' remaining counterclaims is GRANTED. Finally, Myers' motion for summary judgment as to the AARA claim and his remaining counterclaims is DENIED. The Court is in receipt of letters from Plaintiff and the Defendants the City and the Commission, dated May 14, 2003 and May 15, 2003. (Pl. Letter, May 14, 2003; City Letter, May 15, 2003; Pl. Letter, May 15, 2003.) Plaintiff shall file its Motion Papers on June 30, 2003; Defendants shall file its Response Papers on August 15, 2003; Plaintiff shall reply, if desired, on or before August 29, 2003.

Summaries of


United States District Court, S.D. New York
Jun 17, 2003
01 Civ. 1226 (DAB) (S.D.N.Y. Jun. 17, 2003)
Case details for


Case Details


Court:United States District Court, S.D. New York

Date published: Jun 17, 2003


01 Civ. 1226 (DAB) (S.D.N.Y. Jun. 17, 2003)