Basia Goszczyńska a/k/a Barbara Fedorowicz v. Arcadia Earth LLC and Informa…

Background

Basia Goszczyńska a/k/a Barbara Fedorowicz brought claims under the Visual Artists Rights Act of 1990 (VARA), a federal law protecting certain artists’ attribution and integrity interests, and under New York common law. She alleged that Arcadia Earth LLC and Informa Markets Fashion (East) LLC misappropriated and destroyed her sculpture, Gleam, during the Coterie Show at the Javits Convention Center in Manhattan in September 2022.

According to the amended complaint, Arcadia Earth commissioned Goszczyńska to present Gleam at the show. She alleged that, after she discussed her Christian beliefs while installing the sculpture, Arcadia Earth’s founder directed her not to discuss her faith and later sought to have her removed. She alleged that Arcadia Earth and Informa Markets personnel insisted that she leave the artwork behind, that security and law-enforcement personnel escorted her from the convention center, and that the sculpture was then substantially destroyed by convention-center personnel. She further alleged that the defendants aided or conspired in that destruction.

The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and 12(b)(6), which concerns failure to state a legally sufficient claim.

Jurisdiction

The court held that the VARA claim presented a federal question. Although the claim ultimately failed under Rule 12(b)(6), the court concluded that it was not so plainly frivolous or without merit that it failed to support federal-question jurisdiction.

The court rejected the pleaded basis for diversity jurisdiction. The defendants were identified in the caption as limited liability companies, but the complaint did not allege the citizenship of each company’s members. The court explained that an LLC has the citizenship of each of its members for diversity purposes. The court also stated that, even if the defendants were treated as corporations, the complaint did not identify their principal places of business.

Because the federal claim was dismissed and diversity jurisdiction was not adequately pleaded, the court declined to exercise supplemental jurisdiction over the New York common-law claims. It dismissed those claims without prejudice to refiling in a court of competent jurisdiction.

VARA Claims

Goszczyńska asserted three VARA theories: violation of her attribution right, intentional distortion or modification of the sculpture, and destruction of a work of recognized stature.

Attribution. The court dismissed the attribution theory. The complaint did not allege that Informa Markets used photographs of Gleam without proper attribution. As to Arcadia Earth, the complaint alleged that it used photographs of Rainbow Cave—not Gleam—on its website and Instagram account without proper credit. The court held that VARA’s attribution rights do not apply to reproductions or depictions of a work in websites, advertising, or social-media posts of the type alleged here.

Intentional distortion or modification. VARA protects against intentional distortion, mutilation, or other modification of a work when the change prejudices the artist’s honor or reputation. Goszczyńska alleged that the defendants modified Gleam by preventing her from presenting it personally and by presenting it without the faith-based environmental dimension she intended to convey. The court held that this alleged conduct was a presentation decision, not an actionable modification of the artwork. Presentation decisions are left to the exhibitor under the governing Second Circuit authority.

Destruction of a work of recognized stature. VARA separately protects a work of recognized stature from intentional or grossly negligent destruction. The court held that Goszczyńska did not adequately allege that Gleam had recognized stature. A commission or recommission of the work was not enough to show that it had the required artistic merit recognized by art experts, the artistic community, or a segment of the public. The complaint’s allegations about accolades for Goszczyńska’s other works also did not establish that Gleam itself had recognized stature.

The court did not decide whether Gleam was a work made for hire, which could have affected whether it qualified for VARA protection, because the claim failed on other grounds.

Disposition

Judge Rearden granted the defendants’ motion to dismiss. The VARA claim was dismissed with prejudice. The court declined to exercise supplemental jurisdiction over the remaining state-law claims and dismissed them without prejudice. The court also stated that Goszczyńska was not granted leave to amend because she had already amended after receiving notice of pleading problems, did not request another opportunity to amend, and identified no additional facts that could cure the defects. The Clerk of Court was directed to close the case.