Sculptor snares rare victory in decadeslong dispute with Kevin Costner

(CN) — The decadeslong saga of an enormous, larger-than-life sculpture of 14 buffalo being pursued by three Lakota warriors on horseback commissioned by Kevin Costner — though not quite fodder for a Hollywood film — had its latest chapter written on Thursday by the South Dakota Supreme Court.

A four-judge panel sided with the sculptor and against "Field of Dreams" and "Waterworld" star, reinstating the previously dismissed lawsuit. It marks is a rare courtroom victory for the artist, who's been trying to recover the copyright to her work and force Costner to sell it for 15 years.

The story begins in the heady days of the early 1990s, when Costner, fresh from winning Best Picture and Best Director Academy Awards for his film, "Dances With Wolves," commissioned Peggy Detmers, a former biologist for the U.S. Forest Service, to create 17 bronze sculptures, at 1 1/2 times life size, depicting Lakota warriors chasing buffalo off a cliff.

Costner says the resulting piece would have been the third largest in the world. It was supposed to be displayed at The Dunbar, a luxury resort Costner was planning to build near Deadwood, South Dakota — the former stomping ground of Wild Bill Hickok and Calamity Jane. In addition to an initial fee of $300,000, according to a local news outlet, Detmers was also promised royalties from reproductions of the sculpture, which were to be sold at the resort's gift shop.

But construction of The Dunbar met stiff resistance from a source that Costner may have found surprising: the Lakota People, whom he portrayed so affectionately in "Dances With Wolves," as well as in the artwork he'd commissioned. The tribe claimed the land belonged to them and objected to a proposed land swap with the U.S. Forest Service. In 2000, seeing that no progress had been made on The Dunbar, Detmers put down her tools, refusing to complete the work.

She and Costner then came to an accord: Costner would pay her another $60,000, and promised that, if the resort were not built within 10 years and the sculpture was "not agreeably displayed elsewhere," he would sell it, splitting the proceeds with Detmers 50/50. So long as he owned the sculpture, Costner would own the copyright to it; but if he sold it, the copyright would revert back to Detmers.

Two years later, Costner finally gave up on The Dunbar and decided to instead build, on the same piece of land he owned, Tatanka: Story of the Bison, a sort of roadside attraction to house Detmers' enormous sculpture, which had finally been finished and named "Lakota Bison Jump." Tatanka also included a visitor center, café, gift shop specializing in "Lakota-made, local-made, and Native American owned companies," interactive museum and nature walkways. It remains open today; according to its website, admission is $12, or $6 for kids.

Detmers, apparently, did not think that her sculpture had been "agreeably displayed elsewhere," and sued Costner in 2008, asking the court to force Costner to sell the sculpture, splitting the proceeds with her, and hand over the copyright. The case made it all the way to trial, where the circuit court found in favor of the actor, concluding that Tatanka was "elsewhere," and that the sculpture was thus "agreeably displayed." Detmers appealed, and in 2012, the South Dakota Supreme Court sided with Costner, finding, "the circuit court did not err in concluding that Tatanka was 'elsewhere' under the language of the contract."

And so things stood, with "Lakota Bison Jump" on display for $12 a pop, the gift shop selling reproductions, and Detmers receiving royalties. At some point, Costner sold the land around Tatanka, which had once been earmarked for The Dunbar.

Then, in 2021, Costner listed for sale the land on which Tatanka sits. The listing explicitly stated that the sculpture was not for sale, but would be "relocated by the seller."

This prompted Detmers to sue again, in November 2021, arguing that Costner had promised to "permanently" display the sculptures at Tatanka. She asked the court for a declaratory judgment, affirming her belief that if Costner sold Tatanka, he would have to sell "Lakota Bison Jump," too. Both parties moved for summary judgment. The circuit court, again, sided with Costner, finding that “permanent” display of the sculpture didn't necessarily mean in the same exact place until the end of time.

Once again, Detmers appealed. This time, the Supreme Court sided with the sculptor. In Thursday's ruling, Chief Justice Steven Jensen wrote: "Since the condition that 'the sculptures are not agreeably displayed elsewhere' is ongoing, Costner’s decision to unilaterally sell Tatanka and relocate the sculptures would trigger the sale clause in paragraph three of the Agreement unless the parties agree to another display location."

"Under the plain language of the Agreement, the circuit court erroneously read 'not agreeably displayed elsewhere' to expire after ten years," the decision continues, adding that the reading "conflict[s] with the rules of grammar."

The case is now remanded back to the lower court, where it can proceed to trial.

In an email, Detmers' lawyer wrote: "Peggy is very happy with the decision confirming her continued rights in the creation of the sculptures."

Costner's lawyer declined to comment.

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