‘Ship’ Made for Burning Man Isn’t Art, Court Says

     SAN FRANCISCO (CN) — A Nevada property owner doesn’t owe artists for burning and scrapping a school bus they converted into a ship, but the artists owe him attorney’s fees, the Ninth Circuit ruled Wednesday.
     Simon Cheffins and Gregory Jones converted an old school bus into a mobile 16th century Spanish galleon they named La Contessa and used it for several years during the annual Burning Man festival in the Black Rock Desert in northern Nevada.
     A woman allowed them to store it on her property, but her home burned down, and defendant Michael Stewart eventually bought the property, which still contained the La Contessa.
     Stewart burned the La Contessa’s wooden superstructure and sold what was left of the bus to a scrap metal buyer. Cheffins and Jones said he unlawfully destroyed their artwork and accused Stewart of conversion.
     Cheffins and Jones argued La Contessa was a visual work of art protected by the Visual Artists Rights Act of 1990, but a federal jury disagreed.
     Stewart offered to settle the matter before trial, but Cheffins and Jones declined the offer, lost, and the federal judge awarded attorney’s fees to Stewart.
     Cheffins and Jones appealed, and their case was argued before Judges Sidney Thomas, Diarmuid O’Scannlain and M. Margaret McKeown in October 2014.
     The panel on Wednesday affirmed the district court’s decision, and said Cheffins and Jones must pay the attorney’s fees owed by Stewart.
     The panel found the La Contessa was “‘applied art'” to the bus, which served a utilitarian purpose before the artwork existed and continued to serve that purpose afterward. As a result, it is not protected by the Visual Artists Rights Act, the panel said.
     “The object constitutes a piece of applied art — as opposed to a work of visual art — where the object initially served a utilitarian function and the object continues to serve such a function after the artist makes embellishments to it,” O’Scannlain wrote in the panel’s decision.
     In a concurring opinion, McKeown said the Visual Artists Rights Act’s “protections cannot be limited only to works entirely devoid of any utilitarian purpose” and cited several examples of priceless artworks that arose from utilitarian purposes, such as Bayeax tapestries depicting the Battle of Hastings, but still provide a utilitarian function of keeping a drafty castle warm.
     Cheffins and Jones also argued the trial court abused its discretion by not instructing the jury to consider lost profits and punitive damages arising from the La Contessa’s destruction.
     The panel disagreed, saying “even if the district court erred, such error was harmless, because the jury found in favor of Stewart” on the conversion claim.
     “Such evidence was relevant to the value of the La Contessa at the time of its destruction, and the trial court provided the jury with an appropriate limiting instruction,” O’Scannlain wrote.
     Cheffins and Jones also claimed the state court erred on abandonment issues, saying it didn’t properly apply state law governing abandoned vehicles and improperly instructed the jury on state abandonment law by not explaining a required showing of intent.
     O’Scannlain said the Nevada law Cheffins and Jones cite only applies to vehicles abandoned on public land, while the La Contessa unquestionably was on Stewart’s privately owned land, and the court’s instruction to the jury that “‘abandonment may be inferred'” complies with state law.
     Cheffins and Jones said the lower court erred when it allowed evidence of drug paraphernalia surrounding the La Contessa while it sat on Stewart’s property.
     O’Scannlain said there was no “clear abuse of discretion” by the court, nor any evidence of prejudice after the evidence was allowed to “‘show the condition of things around the ship.'”
     Cheffins and Jones also challenged the lower court’s denial of partial summary judgment on their conversion claim, but the appellate court said it does not review denials of summary judgment in cases that already went to trial.
     Because Cheffins and Jones denied the lower court’s offer of judgment under Nevada law, Federal Rule of Civil Procedure allows the awarding of attorney’s fees, and state law says the prevailing party is entitled to them.
     Cheffins and Jones argued Stewart’s claim for attorney’s fees wasn’t timely under federal rules, but the panel said the state court’s offer of judgment, which they declined, provides the mechanism for awarding attorneys fees.
     The panel said federal procedural rules allow the awarding of attorney’s fees that are due under state law, and the only claim against Stewart when he made the offer of judgment was a conversion claim.

%d bloggers like this: