Do artists have sole control over how their art may be modified and moved, if their art is in a public space? Artist David Phillips, who created a sculpture park in Boston outside the offices of a company owned by Fidelity Investments, is suing Fidelity Investments in order to “keep his artistic vision intact.” Phillips argues that his work is protected from change under both Federal and Massachusetts law. The Federal law is the Visual Artists Rights Act of 1990, which is codified as 17 U.S.C. 106A. The state law is the Massachusetts Art Preservation Act.
Can Phillips prevail?
Scott Hodes, the Chicago lawyer who handled the Jan Martin case, said there are two keys to the Phillips lawsuit: First, Epstein must show that Phillips is an artist of note with a reputation that could be damaged by the destruction or removal of his work. (Court filings include a list of Phillips commissions dating to 1983.) Second, Epstein must show, through the contract with Fidelity, that he owns the copyright on his work and didn’t do it as a “work for hire,” a term that, Hodes said, grants Fidelity the authority to do what it wants with the art. (Epstein said that Phillips does retain the rights.)
