(CN) – The South Dakota Supreme Court unanimously sided with Kevin Costner regarding an artist’s suit over the placement of sculptures of buffalo and Native Americans the actor commissioned for a resort that he never built.
In the early 1990s, Costner paid plaintiffs Peggy Detmers and Detmers Studios Inc. $250,000 to make the seventeen bronze sculptors of buffalo and Lakota warriors that he planned to place at The Dunbar, a luxury resort he wanted to build near Deadwood, South Dakota. Much of his western film “Dances With Wolves” was shot in the state, according to IMDB.
Detmers was also promised royalty rights in reproductions of the sculptures, which were to be sold at the resort’s gift shop. When the resort had still not been built near the end of the decade, Detmers stopped work on the sculptures, resulting in a second agreement that paid her another $60,000 and gave her one half of profits from the sale of the sculptures if the resort is not built within ten years or if they are “not agreeably displayed elsewhere.”
In 2003, Costner had the sculptures placed at Tatanka, a cultural center that he built in place of the resort. Detmers then sued in 2008, seeking a declaratory judgment that she did not agree to the placement of the sculptures at Tatanka and wanted Costner to sell the multi-million dollar sculptures in accordance with their second contract. She argued that since the resort had not been built within ten years and the sculptures were “not agreeably displayed elsewhere,” they should be sold and she should get half of the profits.
Writing for the court, Chief Justice David Gilbertson affirmed the trial court’s finding in Costner’s favor.
“The circuit court did not err or make any clearly erroneous factual findings in determining that the sculptures are ‘agreeably displayed elsewhere,’ in the absence of a guarantee from Costner that The Dunbar would be built,” Gilbertson wrote. “Furthermore, the circuit court did not err in concluding that Tatanka was ‘elsewhere’ under the language of the contract.”
Gilbertson disagreed with Detmers argument that she only agreed to the location of the sculptures at Tatanka because she had been promised or guaranteed that The Dunbar would still be built.
“Detmers cannot point to anything in the record supporting this assertion other than her own testimony,” Gilbertson wrote. “The circuit court found that Detmers was never promised or guaranteed that the Dunbar would be built. Costner maintained throughout this suit that he continues to attempt to build The Dunbar, but cannot promise it will happen. Detmers has not shown any findings to be clearly erroneous.”
The court also disagreed with her distinction that “elsewhere” under the contract must be somewhere other than the resort’s proposed site, which is now home to Tatanka.
“The designated place is The Dunbar,” Gilbertson wrote. “The circuit court concluded that ‘elsewhere’ meant at a place other than The Dunbar. And because The Dunbar had not been built, Tatanka was elsewhere.”