Phillips v. Pembroke Real Estate, Inc.

Pembroke Real Estate, Inc. (Pembroke) (defendant) commissioned David Phillips (plaintiff) to create sculpture and landscape elements for Eastport Park (the park), located in Boston, Massachusetts. Phillips organized his artwork along a diagonal axis through the park. After the park’s completion, Pembroke commissioned a redesign scheme that required the removal and relocation of Phillips’s sculptures. Phillips sued Pembroke in the United States District Court for the District of Massachusetts, seeking injunctive relief under federal law and the Massachusetts Art Preservation Act (MAPA). Phillips claimed that the park was the medium of his art under MAPA. MAPA prohibits the physical alteration or destruction of “fine art,” which MAPA defines as original works of visual or graphic art “of any media.” MAPA protection lasts for 50 years after an artist’s death. MAPA also protects building owners who commission art for buildings, by allowing the owners to remove the art under certain circumstances and by requiring artists to reserve their rights to prohibit the removal in writing prior to the installation of the art. The district court found that the location of the sculptures along the park’s axis was a critical element of Phillips’s work and placed limitations on Pembroke’s ability to remove or alter the sculptures. Pembroke and Phillips filed interlocutory appeals with the United States Court of Appeals for the First Circuit. The district court stayed the appeals pending resolution of the following issues by the Supreme Judicial Court of Massachusetts: (1) whether the legislature intended to include site-specific art within the definition of fine art, and (2) whether MAPA’s prohibition of physical alteration or destruction includes the conceptual destruction that would result from the art’s removal from the site.