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Thing 001359 - Chico Mendez Mural Garden
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Jurisprudence: |
| Ron ENGLISH, et al. vs. BFC & R EAST 11TH STREET LLC, et al. |
Presentation
Since the 70s, the lot 509-515 East 11th Street between Avenues A and B located on the Lower East Side of New York City was vacant. The lot was owned by New York City after the property was seized from private landlords for back taxes. In 1991, sculptor Ken Hiratsuka and painter Chico started the garden entitled Chico Mendez Mural Garden at the lot 509-515 East 11th Street. The garden was named after Amazon Rain forest environmental activist Chico Mendez, who was murdered by loggers in 1988. Together with the artists Ron English, Leslie Heathcote, Lauridsen and over forty neighbors like Nelson Rodriguez and Jeff Wright they planted trees, vegetables, flowers, etc... on the lot. It was widely utilized by people in the neighborhood and became an important meeting place.
Since 1994, Mayor Rudolph Giuliani’s Administration intended to sell off all so called vacant city-owned properties. This was part of the city’s supposedly affordable housing program. The Department of Housing Preservation and Development (HPD) placed over half of the 776 community gardens throughout New York city “on hold” because of pending development plans. In September 1995, New York City sold the lot at 509-515 East 11th Street for $2.3 million to the NYC Partnership Housing Development Fund, a large consortium of banks, financial and real estate interests. In March 1996, the development of the lot was approved by Community Board 3. The development rights for the site were handed to Donald Capoccia of BFC Partners, who had contributed $10,000 to Giuliani’s mayoral campaign, to construct private condominiums, ranging in price from $117,200 to $201,000.
The construction of condominiums implied the destruction of the community garden Chico Mendez Mural Garden. An uproar and protest by the garden supporters followed the decision for destruction. On September 15, 1997, the New York City Coalition for the Preservation of Gardens, brought suit in state court seeking to block the development at this site and also other sites. On October 1, 1997, a claiming order to vacate the community garden had been issued. Police backed off after garden supporters mobilized to defend the garden, saying they did not have a copy of vacate order in hand. A temporary restraining order was entered in the State court action. On October 7, 1997, six artists, including Ron English, filed action against BFC Partners based on the Visual Artists’ Rights Act ("VARA"). The artists claimed the garden as a whole as a work of art and that each of their moral rights will be violated if the garden is destroyed. On October 15, 1997, the temporary restraining order expired when state court dismissed the petition concluding that petitioners lacked standing to challenge the appropriateness of the land use determinations made by the City of New York with respect to the lot. Then an appeal made the order pending. On November 7, 1997, the temporary restraining order expired. On December 2, garden supporters assembled a barricade of construction cones, police barriers and garbage against the garden fence. On December 3, 1997, the case Ron English and others v. BFC & R and others took place at the United States District Court, S.D. New York. Judge Baer stated:
“The debate over the merits of the litigation turns in part on whether the garden is conceived of as a single work of Visual Art, or whether each mural and sculpture is seen as an independent work. [...] [T]here is no dispute that the sculptures and elements of the garden can be removed before construction begins. Indeed, [BFC & R] have agreed to do so and to deliver them to another nearby resting place at no charge [...]. [BFC & R] move for summary judgment on various grounds, including their assertion that VARA is inapplicable to [Ron English]’ artwork because it was illegally placed on the property. I find this argument convincing and hold that VARA is inapplicable to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question. [...] The Court therefore holds that VARA does not apply to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question.”
The Court concluded that illegal gardens are not copyrightable and that Chico Mendez Mural Garden therefore can be destroyed. On December 31 1997, real estate developer Donald Capoccia bulldozed Chico Mendez Mural Garden.
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