For 25 years, the courtyard at the Department of Environmental Protection in Trenton has provided space for workers to chat, unwrap a turkey sandwich, or crack a book before returning to the office. Now, it’s fueling a public arts controversy in New Jersey. That’s because the state has plans to tear out the courtyard — a large-scale public sculpture — in spring 2013.
The DEP cites the courtyard’s time-worn, uneven floor and its crumbling bricks as safety hazards. It will clear the space to make way for a new, more eco-friendly installation, said DEP spokesperson Lawrence Hajna. But critics of the plan say the sculpture is important to preserve because it is a landmark work of public art. Removing it, they say, would destroy the sculpture.
That group of critics includes the artist who designed the work, Athena Tacha. “How am I going to remove it?” Tacha said from her home in Washington, D.C. “It’s like a building — built with bricks.” In a move, she said, “it’ll be destroyed.”
Tacha is considering taking legal action against the state, she said. But she hopes to gain enough support to stop the removal of the sculpture with a petition and extensive news coverage. A legal move on Tacha’s part, some experts say, would mean entering a murky, relatively uncharted area concerning both state law and federal copyright law.
In April, the state sent Tacha a letter saying it planned to remove the sculpture. It offered to make way for her to remove it at her own expense before July 31.
“It’s something that’s going to have to be demolished, for lack of a better word,” said Hajna, the DEP spokesperson, in reference to the sculpture. The courtyard’s slate slabs have settled unevenly, he said. That unevenness, he said, would make it easy for people to trip in the case of a fire or other emergency requiring them to rush out of the DEP’s buildings. The state’s plan to remove the sculpture does not constitute a negative comment on the artist or the work, Hajna said, calling the sculpture a mainstay on the DEP grounds. The state’s priority, he said, is to make the area safer. “While we do that,” he said, “we’re going to make it a greener place for employees and the public.”
The state sponsored the sculpture’s $417,000 construction after choosing it as the winner in a State Council on the Arts competition to honor the Green Acres land preservation program. That contest was one of 50 public arts competitions Tacha has won across the country. About 40 of those designs turned up in parks and other public spaces nationwide, she said, including Franklin Town Park in Philadelphia.
The Green Acres sculpture is made of paved green slate and tiered, ovular brick structures containing large planters. Photographs of endangered species — some taken by workers at the DEP — appear sandblasted on the square tiles. The DEP will replace the sculpture with trees, other plants, and a rain garden, including underfoot material that will allow rainfall to seep into the ground. The current green slate, Hajna said, prevents this, sapping the ground of its water supply.
“This is one way of practicing what we preach,” Hajna said, adding that the DEP encourages New Jersey towns to work to replenish their groundwater. The state has a rough, preliminary design of the new landscape, he said, and will begin construction in Spring 2013 at the earliest. The DEP does not have the figures detailing maintenance costs for the current sculpture, Hajna said. A spokesperson for the treasury department said that it also did not keep those figures.
Ann Marie Miller, executive director of ArtPride New Jersey, said she favors the idea of a plan to preserve the Green Acres sculpture over its removal. “It has historic significance,” she said. “It was one of the early Percent for Art projects. It’s wasteful to demolish.”
Following the Map
Tacha conceived the design specifically for that courtyard space, she said, mapping its flowing lines to enliven what she calls the coldness of the buildings surrounding it. “It doesn’t make sense anywhere else,” she said.
The state breached her contract, she said, when it put trees in the courtyard planters without her input. The roots of those trees, she said, contributed heavily to the unevenness of the sculpture’s bricks. Tacha wrote to the state over the years, she said, noting cracks in the mortar and including photos. She offered to help advise the state on replacing the red tile pavers surrounding the sculpture with red asphalt, a material that she says would allow rainfall to replenish groundwater there.
Tacha praised the state’s repair of the sculpture in 2005, completed with a $30,000 State Council on the Arts contribution. But, she said, the state has neglected to perform routine upkeep on the sculpture since then.
The Green Acres sculpture marks the sixth out of Tacha’s 40 commissioned public sculptures to be removed, she said. Those previous five, she said, include works in Ohio and Florida. In some cases, authorities cleared the works to make way for other developments, including an airport. Others fell to bulldozers after officials diagnosed them as unsafe, she said, their erosion a symptom of poor maintenance. “It’s mostly negligence that destroys works,” she said.
The Green Acres sculpture paved the way as one of the first large, public sculptures to incorporate design elements from its surrounding landscape, said Charles A. Birnbaum, president of the Cultural Landscape Foundation in Washington, D.C. “This is created specifically for this site,” he said. “It’s the work of a master. ”
Birnbaum called for the state to make the area safer and more eco-friendly by renovating Tacha’s work. “They just want to throw the baby out with the bathwater instead of looking at how to renew it,” he said. “It’s not like a painting where you can just decide, ‘I’m going to move it from the den to the living room.’”
Tacha pointed to a lack of arts education as an explanation for the removals of her landscape sculptures across the country. “It’s simple ignorance. People don’t have enough education about art. They don’t understand it,” she said. “They don’t care about it.”
Defending Moral Rights
In 1991, the federal government added to its copyright laws some “moral rights” — those designed to protect visual artists’ work. That protection extends to artists like Tacha who wish to prevent destruction or major changes to their work. But the rights extend only to works produced and sold after the rights went into effect 1991.
Tacha’s 1987 sculpture doesn’t make that cut-off, said Amy Adler, an arts law expert at the New York University School of Law. “It’s not protected” by federal law, she said. “In France, it’s a different matter. There’s very strong moral rights protection. It’s a strong tradition,” she said, one that classifies visual works of art as a “deeply romantic expression of an artist’s soul.”
But the U.S. has adhered to its own tradition for the most part, Adler said. That tradition is a buyer’s, keeper’s mentality. “If you bought something,” she said, “it’s your property, and it’s your right to do with it as you wish.”
Despite that 1991 cutoff, artists in Tacha’s shoes might still have a shot at making a case to protect their works, depending on the terms of their contracts, said Peter L. Skolnik, an attorney and chair of the entertainment and media law practice at the Lowenstein Sandler law firm in Roseland. That’s because some states have statutes protecting visual artists’ work. A New Jersey statute offers protections to artists whose work has been majorly changed without their prior consent and to those who can prove that authorities neglected to maintain the work.
Most of the time, federal copyright law trumps state law, Skolnik said. But “interestingly enough,” he said, “I think state moral rights would survive” in this situation. That’s because the federal copyright laws with preempting power are the ones that have consistently protected traditional American rights, such as those of reproducing and distributing copies, and the right to create a sequel or spinoff. The federal moral rights afforded to visual artists, the ones adopted in 1991, Skolnik said, do not fall under that umbrella of traditional rights, he said, “and therefore I believe it would not preempt.”
A fine point, Skolnik acknowledged. But “for a visual artist,” he said, “it’s damn important.”