The unusual $1 million case of two San Francisco artists suing the landowner who torched the 40-foot replica of a Spanish galleon which they had stored on his property could hinge on whether La Contessa is a “work of recognized stature.”

La Contessa on fire

The boat, constructed around the body of a school bus by Simon Cheffins and Gregory Jones, sailed across Nevada's Black Rock Desert during the annual Burning Man Festival. But Gerlach, Nev., farm owner Michael Stewart evidently did not appreciate its artistic significance when he set fire to it on Dec. 5, 2006.

Cheffins and Jones –- who say Stewart never gave them a chance to remove La Contessa from his property -– sued him last month, alleging he is liable for conversion and for violating the Visual Artists Rights Act (VARA) of 1990. They estimate the value of their work at $900,000 and could also recover up to $150,000 in statutory damages.

Stewart acted “with a conscious disregard for the rights of the authors and owners of the artwork known as La Contessa,” the complaint says.

In the Nevada desert, property rights are considered sacred and Stewart's lawyer has suggested he was well within his rights to dispose of La Contessa. “What would you do if someone left some junk on your property?” F. DeArmond Sharp of Reno asked the San Francisco Bay Guardian.

The previous owner of Stewart's farm -– which borders the Black Rock Desert -- had allowed Cheffins and Jones to store the boat on the property since 2003. Stewart bought the farm in 2005 and, according to Sharp, never gave the artists “written consent or implied consent” to keep La Contessa there.

But VARA clearly leans toward the protection of art, prohibiting “any intentional or grossly negligent destruction” of a “work of recognized stature” and making no exception for artwork located on private property.

The threshold issue in the case is whether La Contessa meets the “recognized stature” requirement. “In spite of its significance, that phrase is not defined in VARA, leaving its intended meaning and application open to argument and judicial resolution,” the 7th U.S. Circuit Court of Appeals noted in Martin v. City of Indianapolis, 192 F.3d 608 (1999).

U.S. District Judge David N. Edelstein fashioned a test in a case involving an unfinished sculptural installation at a Macy's warehouse in Queens, N.Y.:

(1) that the visual art in question has “stature,” i.e. is viewed as meritorious, and (2) that this stature is “recognized” by art experts, other members of the artistic community, or by some cross-section of society. In making this showing, plaintiffs generally, but not inevitably, will need to call expert witnesses to testify before the trier of fact. Carter v. Helmsley-Spear, 801 F.Supp. 303 (1994).

In Martin, the 7th Circuit said an outdoor sculpture satisfied that test, but Judge Daniel A. Manion dissented, citing the “well-worn adage that one man's junk is another man's treasure” and concluding that the sculpture was “not one of those exceptional cases where something of unquestioned recognition and stature was destroyed.”

Cheffins and Jones say in their complaint that La Contessa “was recognized as a significant piece of artwork” in several media outlets and in several books about Burning Man. The boat featured 16th-century design standards and an interior described as “a cross between a fancy bordello and a captain's stateroom.”

But that evidence –- without expert testimony -- may not be enough to establish the artistic merit of La Contessa. As Manion said, “A plaintiff cannot satisfy his burden of demonstrating recognized stature through old newspaper articles and unverified letters.”

In Carter, Judge Edelstein declared the artwork protected after an art historian compared it to the Watts Towers in Los Angeles and Antoni Gaudi's Church of the Holy Family in Barcelona, Spain.

By Matthew Heller
4/23/09