Two San Francisco artists have suffered a major blow in their lawsuit against a landowner who torched their replica of a Spanish galleon as a Nevada judge ruled that their creation was not a protected “work of visual art.”

La Contessa on fire

The $1 million case of the 40-foot boat known as La Contessa is a test of a 1990 law that protects a visual artist's “moral rights” to his work. Those rights include the right to prevent any intentional or grossly negligent destruction of a “work of visual art,” including “a painting, drawing, print, or sculpture.”

Simon Cheffins and Gregory Jones created La Contessa as a “mobile, kinetic sculpture” for sailing across Nevada's Black Rock Desert during the annual Burning Man Festival. They sued Gerlach, Nev., ranch owner Michael Stewart in March 2009 for destroying the boat, which they had stored on his land with the permission of its permanent “life tenant.”

But the Visual Artists Rights Act (VARA) has an exception for “applied art,” or works “embodied in useful articles.” And U.S. Magistrate Judge Robert A. McQuaid said in a recent opinion that La Contessa was applied art because it was constructed around the body of a school bus.

“A bus is a utilitarian object, the purpose of which is to move and transport people,” he reasoned in summarily dismissing the VARA claim of Cheffins and Jones. “La Contessa was built on top of a bus and retained the bus’ innate function of movement and transport.”

McQuaid allowed Cheffins and Jones to go to trial on their tort claim for conversion. But they have asked him to either reinstate the VARA claim or allow them to file an immediate appeal to the 9th U.S. Circuit Court of Appeals.

“[T]he remarkably narrow definition of La  Contessa as applied art misses the entire intent of the art piece and the reason VARA was enacted,” they say in a motion.

Stewart's expert, art appraiser G.B. Carson, concluded La Contessa was applied art because “[i]ts primary purpose ... was to provide transportation and other uses” at Burning Man. Cheffins and Jones say acerbically that “[N]o one, except perhaps a small-minded hired gun/art dealer, in the art world would consider La Contessa as applied art.”

The two artists began storing the boat on Stewart's ranch bordering the Black Rock Desert in 2003. After the "life tenant" moved away, abandoning her life estate and causing the property to revert to Stewart, he set fire to the boat on Dec. 5, 2006.

One of Stewart's representatives, McQuaid noted in his ruling, had “notified Burning Man, but not Plaintiffs, that if La Contessa was not removed it would be destroyed.” The artists have estimated the value of their work at $900,000 and could also recover up to $150,000 in statutory damages under VARA.

McQuaid found the boat had “remained a utilitarian object” because it retained “the ability to move and transport people.”  He also said that “to the extent Plaintiffs assert that La Contessa was not applied art because it was a venue for [musical] performances, such an object is also functional and would constitute applied art, as well.”

The judge disregarded the testimony of the plaintiffs' expert, museum curator JoAnne Northrup, who said the boat's “primary purpose is to visually delight audiences — the enchanting vision of a Spanish Galleon seeming to 'sail' across the desert is most compelling.” As the plaintiffs argue, McQuaid also contradicted himself.

“By the Court’s own rationale,” they say,

transforming a school bus into some other form of utilitarian transportation, a venue for performances was not the original design function of the utilitarian object ... [T]he original utilitarian object, a school bus, has and was transformed into something completely different.

McQuaid isn't likely to change his mind — he has already told Cheffins and Jones that a motion for reconsideration would be a “waste of paper.” But the artists believe a trial on the conversion claim alone “will be fruitless and a waste of time and resources.”

The ruling on the VARA claim, they say, “essentially undermines Plaintiffs’ entire case as a state conversion claim cannot adequately address the monumental public policy issues presented by this litigation.”

By Matthew Heller
2/27/11