Land carrack not a work of visual art, holds the Ninth Circuit

Cheffins v. Stewart, No. 12-16913 (9th Cir. June 8, 2016).

La Contessa, pictured at the Burning Man festival in 2005. (Credit: flickr / Thrakazog.)

La Contessa, pictured at the Burning Man festival in 2005. (Credit: flickr / Thrakazog.)

The plaintiffs, two Burning Man attendees, built a replica of La Contessa, a sixteen-century Spanish galleon, out of a used school bus. They stored the replica on land owned by Burning Man organizers. Not long thereafter, though, defendant Michael Stewart, one of the biggest property owners in the area, took possession of the land. Stewart set La Contessa on fire, and sold the school bus as scrap metal. The replica builders have sued Stewart under the Visual Artists Rights Act, part of the Copyright Act. The Visual Artists Right Act gives artists the right to prevent the intentional destruction of “works of visual art.”

What’s a work of visual art? It includes a sculpture, and according to the plaintiffs, that’s what their replica of La Contessa was. But the Copyright Act doesn’t just contain a positive definition of a work of visual art. It also contains a negative definition. It says that a work of visual art is not “applied art,” among other things. And here Stewart maintains that that the replica was applied art, and hence not protected by the Act.

So what’s applied art? The Act doesn’t define that term, but the Ninth Circuit construes it to mean an object with artistic qualities that nevertheless “originally was—and continues to be—utilitarian in nature.” And here, the court says, La Contessa, even after it stopped being a utilitarian school bus, “retained a largely practical function,” being used for transportation, rides, and a forum for performance. It isn’t protected by the Visual Artists Rights Act.

Judge McKeown concurs separately. She’d define applied art differently, as work that is “primarily directed to a utilitarian purpose.” Take the columns of the Parthenon as an example, she says. They’re outstanding sculptures, and thus should be protected by the Visual Artists Rights Act, but they also have some utilitarian function: they hold up the building. And yet the majority, she believes, leaves unresolved how utilitarian a work must be before it qualifies as applied art. Still, that doesn’t affect the result here. There’s “powerful evidence that the primary purpose of La Contessa” was utilitarian, so Judge McKeown concurs in the result.