1. IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
___________
No. 12-2345
Nina Arroyo-Lee,
Appellant/Cross-Appellee,
v.
Warwick Environmental Preservation Association, Inc.,
Appellee/Cross-Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
BRIEF FOR APPELLANT/CROSS-APPELLEE, NINA ARROYO-LEE
2052.Section4D.Brief2
185 W. Broadway
New York, NY 10013
(212) 431-2100
Attorneys for the Appellant/Cross-Appellee

2. QUESTION PRESENTED
1. Whether “Spring Awakening,” a sculpture that has been praised by art experts, members of
the artistic community, and members of the general public, is a work of recognized stature under
The Visual Artists Rights Act of 1990 (17 U.S.C. § 106A).
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3. ARGUMENT
I. WEPA ACTED IN VIOLATION OF VARA WHEN IT INTENTIONALLY
DESTROYED MS. ARROYO-LEE’S SCULPTURE “SPRING AWAKENING”
BECAUSE IT IS A WORK OF RECOGNIZED STATURE
The Visual Artists Rights Act of 1990 (17 U.S.C. § 106A), or VARA, was enacted to
help artists prevent third parties from destroying, modifying, or claiming ownership of certain
visual works of art. These protected works may include a “painting, drawing, print, or
sculpture....” More specifically, 17 U.S.C. § 106A(a)(3)(B) provides that an artist has the right
“to prevent any destruction of a work of recognized stature.”
There is no definition of “recognized stature” within 17 U.S.C. § 106A. The leading case
on this issue is Carter v. Helmsley-Spear, 861 F. Supp. 303 (2d Cir. 1995). The court in Carter
stated that the provision is “preservative in nature: Congress was concerned that the destruction
of works of art represented a significant societal loss.” (Id.) To determine whether a work was of
“recognized stature,” the Carter court applied a two-tiered test: (1) the art must possess "stature,”
or artistic “merit,” and (2) “this stature [must be] recognized by art experts, other members of the
artistic community, or by some cross-section of society.” (Id.) “Spring Awakening” was clearly
protected by VARA because it possessed artistic merit and was sufficiently recognized.
A. The Evidence on Record, Including Expert Testimony and Newspaper Article Excerpts,
Undeniably Demonstrates That “Spring Awakening” Is a Work That Had Inherent
Artistic Merit
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4. In accordance with the finding that VARA was intended to be preservative in nature, the
court in Carter stated that a work of visual art does not need to be “equal in stature to that
created by artists such as Picasso, Chagall, or Giacometti” to qualify for VARA protection.
(Carter, at 325). Furthermore, although expert testimony will “generally” be provided to
demonstrate that a work possesses stature, it is not “inevitably” needed. (Id.)
The District Court made several errors in determining that “Spring Awakening” was not
artistically meritorious. First, the court misinterpreted and misapplied the testimony of both art
experts. Jonah Peters, an art historian who has 25 years of experience and membership in the
Mayor’s Advisory Committee on Art and Culture in Warwick, testified for Ms. Arroyo-Lee and
stated that “Spring Awakening” was “striking” and showed “that the artist has maturity and
vision.” (Peters Test. 44-51). Mr. Peters also called the sculpture an “avant-garde piece” that
captured “the spirit of the Arab Spring Movement.” (Id.). Even the defendant’s expert, Sharon
Rhodes, conceded that the sculpture had merit. She testified that the sculpture “from a technical
standpoint is well done.” (Rhodes Test. 76-7). She further admitted that it was “innovative to
connect a human rights activist to the mission of the organization through the sculptural form.”
(Id. at 77-9). She also conceded that “Spring Awakening” was “well-constructed.” (Id. at 92).
In its decision, the District Court reached erroneous conclusions because it did not
consider the entire body of testimony. It mistakenly construed Mr. Peters’ testimony to mean that
he had “concluded that virtually all art has merit.” (Op. p. 4). There is no statement in Mr.
Peters’ testimony that wholly supports the court’s assertion. While Mr. Peters did testify that a
“person is an artist when he creates art,” this statement is not supportive of the court’s finding.
The court also mistakenly ignored statements made by the defendant’s expert that clearly
supported a finding of inherent artistic merit.
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5. In addition, the court erred in that it failed to consider other types of evidence that could
have supported a finding of intrinsic merit. In Martin v. City of Indianapolis, 982 F. Supp. 625
(S.D. Ind. 1997), the court utilized several sources to determine whether a sculpture had “artistic
merit,” including newspaper articles. (Martin). The court explained that these articles were
valuable for two reasons: 1) they offered proof of positive statements made by members of the
artistic community about the artist’s work, and 2) their mere existence demonstrated the
“newsworthiness” of the artist’s work, which was another indicator of its merit. (Id., at 630).
In this case, the District Court made no reference to the contents of the “Brooklyn Rail”
article provided by Ms. Arroyo-Lee. The article, which had the inherently positive title: “Avant-
Garde Artistic Celebration of Women and Democracy,” contained supportive statements made
by Madeline Faber, a professor of fine arts. (Brooklyn Rail, p. 2). Ms. Faber labeled the sculpture
“technically proficient” and “a profound tribute.” (Id.). Furthermore, Ms. Arroyo-Lee produced
another news article in which arts editor Allison Haverford stated: “Arroyo-Lee’s an artist to
watch. Spring Awakening is a striking example of the potential for art to awaken the senses.”
(Arroyo-Lee Test. #2, 84-9). These statements, in combination with the testimony of both
experts, is overwhelming evidence of the intrinsic artistic merit of “Spring Awakening.”
B. “Spring Awakening” Is A Work of Recognized Stature Because, In Addition To
Possessing Intrinsic Artistic Merit, It Had Achieved Significant Recognition From Art
Experts, Members of The Artistic Community, and a Cross-Section of Society
Once it has been successfully shown that a work has intrinsic artistic merit, the plaintiff is
required to demonstrate that it also has received recognition from “art experts, other members of
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6. the artistic community, or... some cross-section of society.” (Carter v. Helmsley-Spear, at 325.)
Although the reputation of the artist can sometimes aid a finding of recognized stature, “it is the
artwork that is the subject of the litigation that must have acquired this stature.” (Scott v. Dixon,
309 F. Supp. 2d 395 (E.D.N.Y. 2004)). Furthermore, in Pollara v. Seymour, 150 F. Supp. 2d 393
(N.D.N.Y. 2001), the court favored a broad interpretation in which “prior recognition” is not
even “a necessary precondition to the existence of a cause of action under VARA.” (Id.)
Although the two-tiered Carter test requires that proof of recognition need only be based
on one of three potential sources, Ms. Arroyo-Lee has produced evidence of recognition from all
of them. As discussed previously, both parties’ experts testified about her sculpture’s intrinsic
merit, which leads to a conclusion that both experts have “recognized” it as well. Madeline Faber
and Allison Haverford, members of the artistic community, also extolled the virtues of “Spring
Awakening” in the news articles on record. (Brooklyn Rail p. 2; Arroyo-Lee Test. #2, 84-9).
Finally, Dylan Shaw admitted that he had often received “compliments” about it from park-
goers, a group of people that may satisfactorily be called a cross-section of society. (Id. at p. 1).
Although some complaints about “Spring Awakening” were detailed in the article, the court in
Carter noted that the work need not be “aesthetically pleasing” in order it to attain recognition.
(Id., at 325.)
Furthermore, the facts of Ms. Arroyo-Lee’s case compare favorably to the facts in
Pollara v. Seymour (150 F. Supp. 2d 393). In Pollara, the plaintiff painted a mural for display in
a public building, but the mural was destroyed before the public could see it. Even though the
public never saw it, the court still found that her painting was “not excluded from the statutory
definition of ‘work of recognized stature’ merely because it [had] not previously been exhibited
to art critics or the general public.” (Id.)
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7. In Ms. Arroyo-Lee’s case, the public had ample opportunity to view “Spring
Awakening.” The sculpture was completed in August 2011 (Arroyo-Lee Test. #1, 89-90) and
intentionally destroyed in May of 2012. (Compl. ¶ 12). In addition, WEPA held a ribbon-cutting
ceremony to commemorate its completion. (Shaw Test. #1, 91-3). Unlike the mural in Pollara,
which still may have attained recognized stature despite a total lack of public viewership,
“Spring Awakening” was on display in a public park for approximately nine months and was
even the subject of a celebratory ceremony.
Finally, Ms. Arroyo-Lee’s reputation as an artist is not a relevant factor in this analysis; it
is the piece itself that must have attained stature. (Scott v. Dixon, 309 F. Supp. 2d 395.) The
District Court noted that Ms. Arroyo-Lee “has not sold any work other than the sculpture at issue
here,” but this observation is irrelevant and should not have factored into the court’s decision.
(Op. p. 4).
It is quite clear that the evidence weighs in favor of a finding that “Spring Awakening”
was a work of recognized stature. The work’s inherent artistic merit is so undeniable that even
the defendant’s expert testified to its existence, and this merit has been sufficiently recognized
over a period of nine months by both art critics and the general public.
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