Copyright Developments

Background

In 1995, Plaintiff Hock co-founded Franconia Sculpture Park (“Franconia”), a sprawling park in Minnesota dotted with contemporary sculptures. Mr. Hock served as the park’s CEO and Artistic Director until his termination by Franconia in 2018. From roughly 2006 to 2018, Mr. Hock built the Prometheus III sculpture on the grounds of Franconia. The work was monumental, weighing 34,000 pounds and standing 53 feet tall.

In a 2019 settlement agreement following Mr. Hock’s dismissal from Franconia, he agreed to remove the sculpture from the park. Nevertheless, after a miscommunication with a Franconia board member, the artwork was never removed. Franconia subsequently arranged for the work's removal and destruction in 2023, selling it for scrap metal.

Mr. Hock filed suit against Franconia in 2024, claiming that the organization had violated his rights under VARA. 

VARA

Under VARA, an amendment to the Copyright Act, artists are granted the right “to prevent any destruction of a work of recognized stature.” The statute notably does not encompass works made for hire.

VARA has made headlines in recent years following the destruction of other outdoor artistic landmarks. For example, in Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421 (E.D.N.Y. 2018), Judge Frederic Block ruled that a property owner violated the rights of a group of graffiti artists whose works were painted over as part of the development of the 5Pointz complex in Long Island City, Queens, in 2013. The court awarded statutory damages of $150,000 for each of forty-five works that were wrongfully destroyed, totaling a $6.75 million award.

Franconia’s Motion for Summary Judgment

Franconia moved for summary judgment, seeking dismissal of Mr. Hock’s VARA claim, arguing that Prometheus III was a work made for hire and that the work was not of recognized stature when it was standing at the park.

Work-for-hire.  In analyzing the work-for-hire issue, the court focused on three issues:

(a)   whether the sculpture was made by Mr. Hock as employee of Franconia acting within the scope of his employment;
(b)   whether the creation of the sculpture occurred largely within “authorized time and space limits;” and
(c)    whether Mr. Hock created the work to serve Franconia.

The court found that factual disputes existed regarding all three issues. For example, while Mr. Hock built the sculpture on the grounds of Franconia, he built it on his own time, and it was unclear whether the sculpture was more for his personal artistic development or for the purpose of serving Franconia. 

Recognized stature.  Similarly, the court found that whether the work was of “recognized stature” was a factual dispute. Drawing inferences in favor of Mr. Hock, the non-movant, the court found genuine disputes of fact as to the recognition and stature of the work. Even though the sculpture attracted minimal critical attention during its lifespan, an art collector and other artists provided support for the work’s recognition in the artistic community. The court found that this evidence, in tandem with Mr. Hock’s credentials, could provide support for the sculpture’s stature.

In sum, the court denied summary judgment on the VARA claim, finding that further factual development was required.

Looking Ahead

Because the court denied summary judgment, the case will head to trial where it will be determined if VARA covers the destruction of Mr. Hock’s work. This determination will hopefully shed light on VARA’s definitional contours going forward.

The coming year may provide further color on the scope of VARA’s protections. Just this month, environmentalist-artist https://www.theguardian.com/football/2026/jun/08/dallas-fifa-mural-lawsuit-robert-wyland after his mural in Dallas celebrating marine life was painted over to make way for a new mural commemorating the 2026 World Cup.

For more information, please contact Victoria Thede, Joelle A. Milov, or your CLL attorney.