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SEPT 2023

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SEPT 2023 Issue
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Public Art as Political Bargaining Chip: When Site-Specificity is Both Potent and Powerless

Susan Chen,<em> Stop the Mega Jail!</em>, 2022. © Susan Chen. Courtesy the artist.
Susan Chen, Stop the Mega Jail!, 2022. © Susan Chen. Courtesy the artist.

Throughout history, art has played a critical role in expressing community sentiment and galvanizing political action. This is particularly true for public art, which by its very nature can become an integral part of its site’s cultural fabric, while simultaneously drawing broader attention to its message. A recently-settled legal dispute regarding artwork by Kit-Yin Snyder illustrates this powerful capacity; it also highlights the opposing potential of cultural initiatives to be used for political horse-trading, and the inadequacy of currently-available legal protections for site-specific installations.

The backdrop of the dispute is directly tied to the history of carceral expansion in Manhattan’s Chinatown. In 1982, New York’s then-mayor Ed Koch proposed the renovation of the old Tombs facility and construction of the newer North Tower—now known as the Manhattan Detention Complex (MDC). The expansion plan resulted in community outrage and protests, which initially delayed but ultimately failed to prevent construction. In part due to the backlash, Mayor Koch’s administration negotiated a compromise and reconciliation plan, which included the building of an adjacent affordable housing complex for seniors and the commission of a number of publicly-funded artworks.

The theme for the MDC commission was “justice,” and one of the chosen artists for the project was Snyder, a renowned multi-disciplinary artist who was born in Guangzhou, China and immigrated to New York as a teen. Snyder’s site-specific design enhanced the public plaza between the two prison towers. Its sculptural components included columns symbolizing the pillars of wisdom and a composition entitled Solomon’s Throne (1992); an additional feature was a geometric paver design running the length of the White Street corridor, depicting the Chinese characters for “justice” and “upright.” In addition to deftly incorporating the artist’s own heritage—shared with a significant local demographic—the design alluded to reconciliation between the city government and the neighborhood it had disempowered.

The city itself recognized the strength of Snyder’s vision for the project: the Department of Cultural Affairs awarded Snyder the 1988 Excellence in Design Award, and the NYC Office of the Council President awarded her a Certificate of Merit in 1993. Perhaps more importantly, Snyder’s works—along with those of Richard Haas, the other artist selected for the commission—became integrated into Chinatown’s daily life and history. For over thirty years, the MDC artworks not only served as landmarks, but as potent visual reminders of a community’s ability to quite literally imprint its objections as part of the civic process.

But history has a way of repeating itself, and in October 2019, the City Council approved the controversial Borough-Based Jails Program, allowing for the construction of a new, 29-story prison tower in Chinatown—projected to be among the tallest in the world. As with the historic 1982 protests, various community groups have responded fiercely to the “jailscraper” plan, voicing concerns about neighborhood character, economic impact, and health/environmental effects. Also as before, the city sought to ameliorate this harm through a “community reinvestment package” (which notably includes highly-contentious capital investment in a neighborhood museum). And as through the ages, the political opposition has itself inspired art—ranging from protest posters, to an activist exhibition, to artwork by contemporary artists not directly involved in the protests—all raising further awareness of the controversy.

Compounding the damage to the relevant community that will result from the expansion project, construction specifically entails removal of Snyder’s and Haas’s artworks from the current MDC site. A Department of Cultural Affairs conservation plan indicates that Snyder’s sculptural components will be stored for possible reinstallation at the new prison facility; but only a “sample” of her paver design will be salvaged and stored—the rest presumably being destroyed in the construction process (along with a seven-panel mural by Haas).

In May 2022, Snyder and Haas sued the City, bringing claims under the Visual Artists Rights Act (VARA), the limited federal moral rights protection statute. Under VARA, a protected artwork’s creator has the lifetime right to prevent its destruction and/or any modification that would be prejudicial to their honor or reputation. However, a New York federal case interpreting VARA (following First Circuit precedent) held that the mere relocation of an artwork is not actionable, even if it results in decontextualization of the work’s meaning. Likely understanding this challenge to a site-specificity argument, the artists’ complaint framed the combination of all of the components of the MDC commission as a single “work of visual art” within VARA’s definition—effectively arguing that because the components are inextricably integrated, destruction of any component constitutes the destruction of all of them.

Shortly after filing their complaint, the artists sought a court order halting demolition. Southern District Judge Lewis A. Kaplan rejected that request, preliminarily finding that the MDC commission was not a unified work entitled to blanket protection, and that any modification resulting from construction would not damage the artists’ reputations. Disturbingly, he further held that the MDC commission did not constitute artwork of “recognized stature” qualifying for protection against destruction, deeming the City awards bestowed on Snyder’s design “unpersuasive,” and finding the artists’ broader acclaim irrelevant to the stature of those specific artworks.

In reaching this conclusion, the Court did not consider any evidence about the Chinatown community’s regard for the artworks. This is at odds with the outcome in the high-profile 5Pointz case, widely hailed in 2020 as a significant artist victory, notably for its adoption of a broader view of “recognized stature.” Specifically, under the Second Circuit’s ruling, that standard should be understood as “fluid” and contextually-specific, not a rigid requirement that an artwork have achieved formal critical acclaim. In keeping with this, an artwork’s qualification for protection may be established by acknowledgement of its quality or status by “a relevant community.” A judicial opinion, though, lacks the same effect as an amendment to VARA’s text—which currently does not provide express guidance for interpreting the critical term “recognized stature.”

In August 2022, the City moved to dismiss the artists’ case, citing Judge Kaplan’s preliminary findings in its court papers. Although the artists filed opposition in September 2022, the parties settled the case in early 2023, having reached an agreement to “incorporate the artwork again in the new development,” thereby “reinforc[ing] the City’s obligations to preserve, recreate and honor [the artists’] … contributions to the community of … Chinatown.” The process by which the city will consult with the artists—or by which these historic works will be recontextualized at any new site in keeping with their intent—is not outlined by the publicly-filed settlement agreement, though the City’s “best efforts” are required.

Even with this resolution, the dispute highlights the need for reform of VARA, both to provide protection for site-specificity, and to clarify a framework for “recognized stature” that mandates consideration of the connection of public artwork to the community where it is sited. Although public art will continue to be used as a political bargaining chip, it can still serve as a potent reminder of the power of resistance and a tool in healing rifts. When an artwork results from such compromise, the least our legislature can do is safeguard it with clear and properly-enshrined provisions recognizing the significance of its context, both physical and political—lest such a concession later be too-easily stripped from the artist and community who participated in the process.


Megan Noh

Megan Noh is a lifelong art lover who co-chairs the Art Law group at New York-based firm Pryor Cashman LLP; her practice focuses on transactional and IP work for art industry stakeholders.


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SEPT 2023

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