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Still Standing?: The Sometimes Rocky World of Public Art

ILN IP Insider

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “Still Standing?: The Sometimes Rocky World of Public Art.”

Following is an excerpt:

To many, the names “Rocky Balboa” and the “Italian Stallion” are as universal and front of mind as the names “Chuck Wepner” and the “Bayonne Bleeder” are regional and tucked into (or have already fallen out of or never made it into) the recesses of memory.  But this writer is not most people. Though aspiring to be a child of the universe, I am at heart still a ten-year-old kid from Bayonne, New Jersey, at the south end of Hudson County who (in 1975) thought a guy from our neighborhood was about to pull off the greatest upset in sports history (at least in the pre-Miracle-on-Ice/before-Jimmy-V era).

You see, in the 9th round of the heavy weight championship fight that would inspire Sylvester Stallone to write Rocky(and Chuck to sue him on a right of publicity claim that later settled), Chuck Wepner knocked down Muhammed Ali (Really, you can see it for yourself).  Though Chuck’s dreams of wearing the crown and earning lots of money were short-lived after the GOAT got up furious, everybody in Bayonne (and wherever Stallone was) felt like a million bucks during those few moments of believing—including both the struggling actor and a ten-year-old that would later write for an IP blog.  But this isn’t about Wepner v. Stallone—this is about what curiously happened more recently when Chuck Wepner’s hometown wanted to honor him in various ways.

In 2015, the City of Bayonne unveiled a Chuck Wepner mural organized by the city’s Community Development Office, and led by artists Nicholas Macchia and Nestor Uraga.  Unveiling of Chuck Wepner Mural in Bayonne, NJ.COM, March 21, 2015.  After its museum unveiling, the city sought a place to display it, and settled upon a large otherwise blank wall on four-story building at the corner of 33rd Street and Broadway, a building that had Andrew’s Café on the first floor. When the city asked the café owner whether there was any objection to having the mural grace that wall, the answer was “No,” so up it went: …

But the owner of the café was not the owner of the building, and this very public piece of art was also now potentially something to be taken down because the building owner did not like it. Eventually, the property owner and the city worked out a deal to leave it up for three years, and it remains up today after more than three years.

But this got me thinking about how it is made, where it is, and what it means,which is what public art is about, right?

It was made through artistic efforts coordinated by the municipal government. This was an undertaking in which governmental employees receiving public paychecks spent salaried time working with volunteers and other to oversee artists creating a publicly commissioned work. Being made in that way through that process, one must consider what rights the public had in it through some shared or common sense of ownership. So maybe the public does in fact own, or at least can exert control over, this public art.  Cathay Smith has certainly catalogued numerous theories under which there may be community rights to public art, and they are worth identifying. She goes beyond United States’ Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A, and multiple state and local historic preservation laws and ordinances to note that the public is often accorded rights through common law as well: implied public dedication, public prescriptive easement, and public trust doctrine are just a few of those means.