“paintings, drawings, prints, sculptures, still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed by the artist.”
As that leaves the overwhelming majority of works out in the cold, the cases where § 106A is invoked are few and far between. However, a highly interesting lawsuit relying on § 106A is currently before the United States District Court for the Middle District of Pennsylvania.
The Plaintiff is David Ascalon, a renowned sculptor (http://en.wikipedia.org/wiki/David_Ascalon). The Defendants are the Department for Parks and Recreation in Harrisburg, Pennsylvania (“DPRH”), the Jewish Federation of Greater Harrisburg (“Federation”), and David Grindle, an artist and/or restorer. In the early 1990s, the Federation and the DPRH decided to create a memorial site to honour the victims of the Holocaust. Mr Ascalon submitted the winning entry for a commemorative sculpture, which was duly made and erected on the site. It consisted of a shining stainless steel core in the shape of a Star of David, around which was wrapped a serpentine shaped structure of a darker and wearing type of steel. The shining stainless steel, suggesting permanence, represented the Jewish people and their endurance under unimaginable suffering. The rusting steel structure represented the barbed wire fences of the Nazi death camps, implying oppression, decay and misery.
In 2003, there was some concern as to the state of the rusting steel part of the sculpture and whether restoration work would be required. According to the statement of claim (http://www.courthousenews.com/2010/07/28/Holocaust.pdf), Mr Ascalon offered to carry out any necessary restoration work, but was eventually not taken up on that offer. Amazingly, in 2005 he received a cease and desist letter from the Federation, demanding he stop referencing the sculpture. In 2007 he learned that, unbeknownst to him, the sculpture had been altered in several ways. Not only had the dark steel structure been replaced by a structure of the same shining stainless steel as the core structure, but his name had been erased from the sculpture as well. Instead, it sported the caption “Restored by David Grindle 2006” and the names of the “Restoration Advisors.”
“The modification of the sculpture has changed it so that now the same shiny stainless steel that represents the enduring Jewish people is also used to depict the Nazi regime and atrocities of the Holocaust. This alteration is abhorrent, and runs completely contrary to the core vision of the Memorial, which was based on the notion of creating a striking and stark visual contrast between the Jewish people and their Nazi oppressors. The sculpture as modified now creates a visual equivalency between good and evil, which is a mutilation and bastardization of the artwork and its purpose.”
Looking at the pictures, I must say I agree. Sadly, the case might be less clear-cut than my civil heart wants to believe: According to § 106A(a)(2), the author of a work of visual art
“shall have the right 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 of the work which would be prejudicial to his or her honor or reputation.”
I suppose by grinding off Mr Ascalon’s name the Defendants successfully avoided violation of § 106A(a)(2). Nice.
§ 106A(a)(3) states that the author 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.”