the next matter on our calendar is stephen don't toben versus the rector churchwardens and there's three men of trinity church morning your honor may it please the court my name is gail stone i'm here on behalf of the artist steve tobin appellant along with my co counsel the honorable stephen honigman this appeal turns on the issue of whether or not the sculpture the trinity route was modified in violation of the visual artists rights act of one nine hundred ninety also known as vera by the removal of the sculpture from the site for which it was created in lower manhattan to a rural backwoods two hundred fifty miles away in connecticut it is our position that this case needs to be returned for a full trial and that there be a reversal of the peace six dismissal there are itself provides that placement is one of the things that could be modified it absolutely does your honor but we do not believe that placement or presentation public presentation is the same as location presentation its common meaning is how is something presented what is the lighting that's used in the statute what is the placement that means is the work angle to one degree this way or that way is it placed forward or backwards location is something entirely different the entire purpose of vera was to protect the integrity of the artist as it is expressed in the artwork with an artwork such as this which was created by agreement of both parties to be a memorial to nine eleven to the victims and the responders what is the location that is specific to this piece of art in this case it's the location that the parties agreed to place it in which is the trinity church courtyard now the sculpture is evocative of something that once existed it's a halls is that right  not not exactly the parties by agreement had the artist take a route of a tree which saved st paul's chapel and cast it into a sculpture using nine that you're requesting yes the somewhere in lower manhattan no we're actually requesting that it be returned to the trinity church courtyard because that's where the parties agreed it would be placed the artist gave a sketch of the sculpture within the trinity church courtyard to trinity church and they approved its location there it is true that the event was the lower manhattan event although nine eleven involved two particular towers being destroyed the trauma was throughout lower manhattan so are these rights that can be waived yes if they're in an explicit writing now my opponents claim that the contract constitutes a waiver we disagree no where in the contract is the word vera used nowhere does it state vera rights have been waived now if you contrast this with a federal statute let's say the ada that requires that any waiver be statutory specific it uses that kind of federal statute uses different language doesn't it i'm sorry i'm not quite understanding the question when there is a specific statutory waiver as part of a federal statute like the  it reads as follows the waiver specifically refers to rights or claims arising quote under this chapter close quote yes statute you're relying on doesn't have similar language does it the this statute states that the waiver must be explicit so it is our position that the waiver must state this is a very a waiver and a waiver vera rights because vera rights are very distinct they are not equivalent to property rights the statute makes clear that there is a set of rights distinct from copyright and distinct from ownership of the piece itself it's a very novel concept in the american legal system obviously it comes from the morale from the french civil law it is not a common law concept which is why congress went to the effort of stating that the waiver must be explicit at a minimum your honor i think the waiver must state this is a very a waiver and a waiver of vera rights because they are so unique these rights to have one course to before your time expires assuming we don't agree with you that location of placement are different concepts do you think you have sufficiently or you gross negligence i do your honor in the recent case of cohen versus jian am the commonly known as the five points case the judge in that case determined that because the artworks were partially painted over in violation of the artist's rights that it was gross negligence to deny the artist the opportunity to obtain an injunction preserving the artwork with its integrity in its original state similarly in this case mr brockman a spokesman for the church told our client on december eleventh two thousand and fifteen that he wanted to repurpose the court yard and remove the work our client said would you please give me a week my children haven't even seen the sculpture let yet would you give me a week to determine what to do about this the following monday my client called and said i'm coming up the next week and bringing my children mr brockman admitted he in fact had stealthily already on december eleventh removed the piece to roll connecticut thereby depriving my client of the opportunity to sink and seek an injunction and preserve the integrity of the art as it was created and where it was cited which bring food to my which i believe is gross into my last question what kind of relief are you seeking here let's assume for circa agree with you that you have sufficiently gross negligence i understand and i see from the pictures the portions of the route  agree that there was gross negligence just for the sake of this question what really can we offer you i request that the k spe sent back for a full trial so that we can have expert testimony on the meaning of the sculpture and the necessity of it being in the location ideally i want the sculpture returned to the site for which it was created my client spent over a million dollars skilling as you want all right thank you very much you reserve three minutes for about oh thank you your honor trinity church morning may please the court peter tomlinson on behalf of trinity church mr tobin brings this lawsuit seeking the extraordinary remedy of an injunction requiring my client to can display a sculpture that it's undisputed that it owns in its court yard that's what this lawsuit is about judge pooler us that they want a court order that we have to continue to display the sculpture trinity display the sculpture in its courtyard for ten years trinity  sculpture that is undisputed there is a contract that governs the party's relationships and in that contract i think there's two very important provisions there's one were trinity is not required to publicly display the sculpture so trinity could store it in a warehouse mr mr tobin entered this contract with with trinity and the contract specifically says trinity has no obligation to display it trinity can also loan it to third parties under the agreement so trinity could if the museum in sydney australia was doing a nine eleven exposition trinity could lend the sculpture to the museum in australia for five years and be in compliance with the agreement and under either of those scenarios storing it in the warehouse or sending it to australia for a nine eleven exhibit it would not be in the court yard so the sculpture can not be site specific the district court did not actually you cite specific such that why you say they can lo it or they can store it but could the contract and the act mean that but when they do display it they must display it at its site specific site a judge and i think there's a tension in that question in that if they they  could lend it in compliance with the contract to a museum in australia for ten years and it would not be in the court yard or they could store it in their warehouse for twenty years so if it was site specific there would be huge periods of time you know it could be during almost the artist's entire life that it's not on display in the court yard and by agreeing to those limitations on trinity's obligations it's not site specific and i would say in response to judge coach questions earlier i think there's also a very clear waiver here  says trinity doesn't have to publicly display it trinity can loan it to third parties there's nothing in the statute that says you have to reference vora i think our waiver is actually more specific than a waiver just said i hereby waive my of our rights  we're not arguing that he's the mr tobin has waived all of his our rights we've got we're arguing that he has waived his rights with respect to location talk to me about the negligence of moving the statue from trinity in the plaintiff's complaint describing the sculpture though describing what happened to the sculpture and judge schofield looked at all of the allegations in the complaint and said they don't rise to the very high level of gross negligence which is a reckless disregard of a legal duty and i think respectfully if you look if you look through the complaint those allegations can't meet that high standard and one of his allegations is that we should have used the same mover that he used and that this minor repair terrible damage one of his allegations is that he wanted to come repair it this sculpture has not been significantly damaged and i don't think those allegations can rise to to gross negligence i also want to pause briefly on the public policy ramifications of his position if location is really protected by vara it's a very it can lead to some very very strange result you can have somebody who has a sculpture on their property and they sell it to someone else and the new owner doesn't like the sculpture and the artist could literally sue the new owner and say you have to keep that's gold sculpture there there's an interesting case in the central district of california that raises some of these policy issues a teenager painted a mural on a dam somewhere in southern california back in  in two thousand and fourteen the municipality discovered that there was lead paint in the sculpture so it we're going to get rid of this sculpture is causing problems in the dam was actually part of a reservoir and there's no public sell health or safety exception for of our and the artist who was a teenager at the time still alive in two thousand and fourteen sued and said i wonder of are you can't move my sculpture at site specific the court ended up dodging the issue about cite specificity in vajra under the bill the exception but there's an interesting discussion it's a central district of california case about some of the policy implications and could congress really have intended to give an artist a lifelong veto over a location i think judge that summed it up best in her her case it said vara  is intended to protect this work of art as it is not where it is and i think that english case the judge bear case that scofield relied on is also very similar to ours a sculpture in a garden in actually in manhattan the owner of the of the piece of property said we'll give the sculpture back to the to the artist just like we did here in this case in the artist said no no you've got to keep it there forever or keep it there for my lifetime is actually the limit of  and sued and sought an order requiring the owner of the property keep it there basically saying you can't build a building there and judge bear the like judge scofield pointed to the public presentation exception and just one last point about ms else and said i mean it says very clearly in the legislative history that location is a matter of public presentation so i think that could not be clearer under the legislative history and i think if you do apply vora in the manner that  tobin is seeking it can lead to some rather extreme results on the gross negligence point the two of you seem to be talking about slightly different things i think you're suggesting that whether there is gross negligence depends on the manner of the removal if they hired a totally incompetent mover to move that any broken that would be in the area of negligence you about why you think what she's talking about is not gross negligence rather than what you're talking about and i think that you mean that's actually a very interesting question of the gross negligence exception to the public presentation exception talks about caused by gross negligence and are we talking about the decision to move the sculpture or are we talking about the actual move of the sculpture i think under and i don't think judge scofield sliced and diced it that finally i think she generally talked about all of the allegations i think none of the allegations rise to the level of gross negligence i think the trinities the timing of trinity's decision to move the sculpture which again we're just accepting is given for purposes of  motion to dismiss the allegations in the complaint which i think if the case had gone farther just as governor there would have been disputes about those but accepting them as true and in response to your question i don't think those rise to the reckless disregard of a legal duty the very high standard of gross negligence the fact the trinity moves as culture that it is using a mover of its choice i don't think those can can that can rise to the level of gross negligence i see my my lights on it just wanted to make a few quick points you know obviously the district court only decided the public presentation exception they did not reach any of the other issues but this court is free to affirm on that basis or other bases and i think as we lay out on our brief we think there is a very explicit waiver so that's a completely separate independent basis for affirming the dismissal of the complaint we also think it's a factual matter there's no dispute that this sculpture is not site specific it is not mr tobin himself told the wall street journal he told the new york times he told art net that the sculpture could be located anywhere in lower manhattan and mention the nine eleven museum is a good is a good candidate also is judged code observed earlier the tree that this culture is based on never actually grew in the trinity church court yard to half a mile away in st paul's chapels court yard so the tree itself is not is not specifically tied to the to the specific or if it is specific and lower manhattan so places i don't think you can have a sculpture that is site specific to lower manhattan i mean site specificity if you think of and i think you may even have been on this site specific sculpture that is site specific to a huge geographic in lower manhattan is a relatively large geographic area so i think site specificity requires a specific site like that location whether be federal plaza or the phillips case from the first circuit involved a sculpture in a park that had the artist claim to have to be in that specific location so i think once you go to lower manhattan and say this sculpture is reminiscent of nine eleven and therefore belongs in lower manhattan you've left the world of site specificity if they specify the site specific argument is commemorative quality can it be anywhere and still commemorate i think so we have memorials to the vietnam war in washington d c in new york we have memorials to all sorts of things in all sorts of places it's in connecticut right now and available for for the public to see i mean it's on a it's on a road in connecticut that people could stop and look at it so i don't think a sculptured just because it is a memorial which i would mention is not an argument that they presented at the district court level but i don't think just because it's a memorial somehow translates it into a site specific work that my client has to display for the and i have myself gone to see the piece in rural connecticut it is packed into trees and shrubs so densely you can't even see the full sculpture it is completely surrounded by trees it not publicly accessible because it's within a cemetery grounds that are private the the argument here your honor is that the artistic integrity of the piece requires that it be placed where it can be seen  where it was agreed to be placed where it has a nexus to a historical site which is the nine eleven event one point eight million people visited the sculpture in one year alone the sculpture was exhibited for ten years the existence of the public presentation of the piece in this location means that several million people a year can see the piece which enhanced has the honor of the artist and the reputation of the artist and enhanced as the esteem for the artwork this is what vera was meant to do in terms of the public policy i'd like to respond to that my opponent brings up public policy i don't know your artwork has to be determined  judged on a case by case basis i don't know of another single work that is a memorial with a site specific purpose like this we have two other cases and other circuits phillips and kelly those were both denied site specific protection because one involved plants that was kelly there were considered to not be stable and therefore not subject to copyright protection which is a prerequisite to very application the other philips involved a marin theme which was a sufficiently specific it could have been anywhere in boston harbor on or on any sea coast so in this case you have i think an artwork that is precisely what the statute was meant to protect first of all because vera has to be exposed vera wavers have to be explicit i don't think that qualifies to be mixed you mean citing this yes yes absolutely i do and i think why is that if the things that are given discusses the waiver issue at length it is she states that because of the imbalance of power between artists and those buying sculpture it is very important that a waiver be very explicit that's why i rights that most people don't understand them very well honestly including artists the right to it and this is why we need expert testimony in this case by the way the idea of the integrity of the artist being embedded in the work is a very abstract concept that needs to be explicitly stated or neither party would understand that it's been waived and i just go back to the one question i asked you about gross negligence yes  any major parts of this piece of art been broken off in the movie yes the branches were broken the branches were broken in the one or many branches i know that it was at least three of the brand yes smaller branches yes but yes your honor but we since we were dismissed on a tour of the six motion we haven't had an opportunity for expert inspection for proper reports for the  expert testimony that congress recites and several places are required to interpret the statute we need art experts to say why this site is important to this artwork we need experts to say why the honor of the artist can only be preserved by having the memorial in this site well those are two different issues one the site specific yes the other is the damage to the yes yes but your honor we were dismissed before was because my client offered at his expense to repair the sculpture my client made a comment in the context of he could repair it yes he did all right thank you both will reserve decision