DES MOINES, Iowa (CN) — A stalemate between the Des Moines Art Center and a New York artist over the fate of a deteriorated outdoor art installation that has roiled the art world will continue a while longer after a federal judge blocked a planned demolition in a order issued Friday.
U.S. District Judge Stephen Locher concluded that New York artist Mary Miss established a likelihood of success on her breach of contract argument that the Des Moines Art Center cannot remove or demolish, without her consent, an art installation that has stood on the rim of a pond near the art center for 28 years.
In his ruling, Locher characterized the dispute as a standoff that is unlikely to satisfy either party. Per the parties' original contract, the art center cannot demolish the artwork without Miss’s consent, which she will not grant.
"Miss cannot, however, force the art center to repair or restore the artwork to its original condition because the same contract gives the art center unilateral discretion to decide whether to undertake repairs or restoration, and the art center has reasonably decided the cost is too high," he said.
“The end result is therefore an unsatisfying status quo: the artwork will remain standing (for now) despite being in a condition that no one likes but that the court cannot order anyone to change,” Locher added. Locher previously granted a temporary restraining order on the demoliton.
Charles A. Birnbaum, president and CEO of the Cultural Landscape Foundation said Locher's ruling was “an important step forward for Greenwood Pond: Double Site and the renowned artist Mary Miss.”
The foundation, a Washington, D.C.-based education and advocacy non-profit, is leading the campaign to preserve Miss’ Des Moines installation. The foundation said expert testimony at a trial — if it gets to that point — will establish that the Miss installation falls within the definition of a sculpture and thus is protected by the federal Visual Artists Rights Act.
Locher, however, wrote that Miss is unlikely to prevail on that claim.
"It is a stretch even to refer to these structures as sculptures in the metaphorical sense; they are surely not sculptures in the literal sense," Locher wrote of the outdoor structures that make up the installation. "It follows that the site is not what Congress had in mind when it granted moral rights protections to artists for their 'sculptures.'"
Miss sued the art center in March after learning of the art center's plan to remove Greenwood Pond: Double Site, a 1996 installation by Miss that consists of wooden and concrete walkways that take pedestrians around the edge of the pond behind the art center, to a pavilion and trough that allows visitors to descend to an eye-level view of the water.
Iowa’s harsh climate has taken its toll on the primarily wood installation, and parts of the site have been closed to the public for months as they pose a danger to the public. The art center determined removing the installation is the only financially reasonable alternative to rebuilding the site at an estimated cost more than $2.6 million.
Miss said she was not consulted on the removal plan, however, and insists it be preserved in place, citing a contract with the art center that requires she be consulted before the artwork is removed, which she said they didn't do.
Miss said in a Friday statement she was pleased with the ruling.
“I am grateful for Judge Locher’s ruling and I hope this opens the door to the consultations about the future of the site that were denied me,” said Miss. “I also want to thank all of the advocates nationally and in Des Moines who have been unwavering in their support.”
The Des Moines Art Center, in a statement released Friday, “We are exploring our options as to how to resolve what has become a court-ordered stalemate. In the meantime, we will retain the existing fencing around the dangerous sections of the site and will engage the City of Des Moines to address public safety in Greenwood Park.”
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