39 CUMLR 749 Page 1 39 Cumb. L. Rev. 749 Cumberland Law Review 2008-2009 Comment *749 SITE-SPECIFIC ART GETS A BUM WRAP: ILLUSTRATING THE LIMITATIONS OF THE VISUAL ARTISTS RIGHTS ACT OF 1990 THROUGH A STUDY OF CHRISTO AND JEANNE- CLAUDE'S UNIQUE ART Anna Belle Wilder Norton [FN1] Copyright © 2009 Cumberland Law Review; Anna Belle Wilder Norton #We believe that labels are important, but mostly for bottles of wine.$ [FN2] - Christo and Jeanne-Claude Introduction Once called the #Evel Knievel of modern art,$ [FN3] Christo Javacheff has been vilified by art critics for garnering fame and publicity with his large scale art installations. [FN4] After all, few other modern artists would be featured in People magazine under the heading #Tangerine Dream $ with a caption reading, #Christo and Jeanne-Claude are mad about saffron!$ [FN5] The article was referring to The Gates, an art installation displayed in New York City's Central Park in February of 2005 that brought Christo and his wife Jeanne-Claude unprecedented notoriety. The Gates consisted of over 7,000 steel structures strategically placed at intervals along the walkways throughout the park, each one festooned with a free- flowing panel of bright orange fabric. [FN6] The piece generated unparalleled revenues throughout New York City during the two-week installation. [FN7] Millions of people visited Central Park; shops, restaurants, and hotels*750 thrived; volunteers passed out swatches of the orange fabric used in the project and members of the Central Park Conservancy sold The Gates hats, mugs, and posters. [FN8] Bruce Willis wore an outrageous bright orange suit on the Late Show with David Letterman, joking that he found the fabric lying around in Central Park. [FN9] Orange was the new black, at least in New York. If art critics are put off by Christo and Jeanne-Claude's tendency to attract publicity, America's #everyman $ has looked on in disbelief. Why would Christo wrap a German building in fabric or open thousands of umbrellas in California and Japan, they ask, when the costs of obtaining the permits and performing the necessary tests grow to millions of dollars, and the projects are taken down in fourteen days? Some say Christo's egotistical nature drives him to #decorate $ aspects of nature that need no embellishing; [FN10] others shake their heads in disgust at the waste of money. His work has been called bizarre; people say that it doesn't mean anything. [FN11] A somewhat easy target, Christo's work has even © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 39 CUMLR 749 Page 1 39 Cumb. L. Rev. 749 been parodied. [FN12] He has been called a #mere maker of frames who prospered in an age when art itself was in eclipse,$ and The Gates has been described as adding a #layer of human engineering on top of something that was already engineered.$ [FN13] And now Christo and Jeanne-Claude are at it again, formulating a plan to cover a portion of the Arkansas River in Colorado with translucent fabric for a period of two weeks, a project simply called Over the River. The couple began searching for the right place for this project in the early 1990s. After observing eighty-nine rivers, they chose a portion of the Arkansas River with high banks so that steel cables could suspend the fabric, a road that runs alongside the river so that observers can look down at the installation and white *751 water that is suited for the rafting that will continue despite the covering of fabric. [FN14] In fact, the rafters will be able to see the clouds and sky overhead, through the translucent fabric. [FN15] Most recently, the U.S. Bureau of Land Management has released the 2,000 page written proposal by Christo and Jeanne-Claude for public viewing on the BLM website. [FN16] When clarifications and changes have been made to the proposal, the BLM will begin preparing the environmental impact statement, a process that will probably take 18 months and which will be followed by public hearings and comments. [FN17] The project will probably be realized by 2012, at the earliest. [FN18] Now, fast forward to the summer of 2012, when Christo and Jeanne-Claude's Over the River finally comes to fruition after decades of planning and bureaucracy-wrangling. The artists' team has spent long hours erecting the structure, and crowds even larger than those in New York who came to see The Gates have flocked to Colorado. Now, imagine that in the dead of night, several days into the display period, an #aesthetic terrorist $ manages to remove and destroy a large portion of the silvery fabric. [FN19] Perhaps the culprit is a member of #Rags over the Arkansas River,$ an opposition group that has gathered strength among local residents. [FN20] As the sun rises the next morning, onlookers can see the damage: the remnants that are left of the flowing river of fabric are tattered and torn. This comment theorizes a lawsuit that Christo and Jeanne-Claude commence against these aesthetic terrorists, seeking vindication under the Visual Artists Rights Act of 1990 [FN21] (#VARA $). VARA is federal legislation granting the moral rights of attribution *752 and integrity to artists. The couple claims that their work constitutes site-specific art and that removing a portion of it from its context effectively destroyed it, thus harming their honor and reputation as artists. This comment explores the artwork of Christo and Jeanne-Claude to illustrate the extent of moral rights in the United States as codified under VARA. Part I describes Christo and Jeanne-Claude's unique brand of art, highlighting several works and discussing the legal issues that stand in the artists' path with the formulation of each new project. Christo and Jeanne-Claude's artwork is internationally famous and often controversial. Importantly for purposes of this comment, the nature of their work makes it difficult to pigeonhole it into a set category of art. Thus the information provided in Part I suggests that Christo and Jeanne-Claude's art is a useful tool to showcase the shortcomings of VARA as well as the negative consequences that arise when courts are forced to make judgments about what does and does not constitute art. Part II looks backward to outline moral rights legislation from its origins in Europe to its codification in the United States through VARA. The Berne Convention in Europe is discussed as well as the United States' reluctance to accede to this international treaty for the protection of moral rights. Copyright is contrasted with moral rights, and early attitudes toward moral rights in the United States are examined. Part © 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 39 CUMLR 749 Page 1 39 Cumb. L. Rev. 749 II then discusses the patchwork of moral rights legislation on the state level prior to federal promulgation of VARA, and VARA's major provisions are analyzed. Part III discusses the sparse case law among the United States district courts and the federal courts of appeal interpreting particular provisions of VARA, decisions that have steadily eroded the rights promised in the act. Section A analyzes what this comment calls the site-specific problem, which is the conflict that arises between an artist's moral rights in his or her site-specific artwork and the owner's interest in maintaining his real property in any way that he sees fit. This conflict is examined from its inception in the minds of legal scholars even before VARA was codified through the cases that popularized it on a national level, to its apparent resolution in the First Circuit's decision three years ago to totally exclude site-specific art from protection under VARA in Phillips v. Pembroke Real Estate Inc. [FN22] Section B assesses the destructive ramifications of the Pembroke Real Estate decision as it applies to Christo and Jeanne-Claude's artwork, and all site-specific art that is not commissioned by or sold to an outside entity. Section C argues that Christo and *753 Jeanne-Claude's work might be characterized as something other than site-specific art so as to achieve protection under VARA. Section D further explores the question of whether judges and legislators are suited to resolve the ancient question: #What is art?$ This part shows that the very purpose of VARA, to protect an artist's moral rights, has been undermined by the lawmakers and courts that have labeled and categorized art to death. Finally, the conclusion of this comment suggests a modest proposal for an amendment to VARA that would expressly include site-specific artwork that is not commissioned by an outside entity as a protected category of art. I. Christo and Jeanne-Claude's Unique Brand of Art: Is It All It's Wrapped Up to Be? Born in Bulgaria in 1935, Christo moved to Paris in 1958 to escape the Communist bloc. [FN23] There he was introduced to the New Realists, a group of artists revolting against abstract painting. [FN24] In Paris he met Jeanne-Claude and began to wrap found-objects in cloth, suggesting the increased importance of the container over the contained and creating a #new kind of abstract, highly enigmatic sculpture.$ [FN25] At his first one-man show in Cologne in 1961, he wrapped a Renault car, a typewriter, a stove, and two pianos. [FN26] Intrigued by the shift the modern art world was making to New York City, Christo and Jeanne- Claude moved there in 1964. [FN27] Four years later, they wrapped their first building, the Kunsthalle, in Bern, Switzerland.