A federal judge has granted a temporary restraining order to the artist Mary Miss, preventing the Des Moines Art Center (DMAC) from removing an outdoor installation it said has become too costly to repair.
In the wake of the judge’s decision, the DMAC provided an update that it has paused its work to remove the installation. “We respect the court’s decision, and we will be pausing plans to remove the artwork from Greenwood Park. The sections declared dangerous and unsalvageable will remain enclosed in protective fencing,” the museum said.
Miss, 79, filed the lawsuit last week seeking to prevent the museum from removing the work Greenwood Pond: Double Site. The installation, which opened in 1996, boasts boardwalk paths that lead walkers up and down ramps around the edge of a small lagoon, flanked by various architectural elements, within a park owned by the city of Des Moines.
The installation is owned and managed by the DMAC, which has argued that it has consulted with structural engineers and determined the work should be taken down in the interest of public safety. The museum has spent over a million dollars repairing the work in the past and anticipates that continued restoration would cost it millions more.
But Miss argued that the museum did not honor their 1994 contract which she said prevents the installation from being altered, relocated, modified, or changed without her written permission. Under the agreement, Miss retained the right to approve of any restorations made during her lifetime and would be paid a fee for any such repairs. The contract stipulates that its terms are binding until 20 years after the death of the artist.
Miss’s legal arguments are rooted in the premise that the museum violated the Visual Arts Rights Act of 1990, which grants the right to prevent the destruction of works of recognized stature.
“Miss has established a sufficient likelihood of success on the merits and irreparable harm to warrant a temporary restraining order enjoining the Art Center from continuing with efforts to remove the artwork,” Judge Stephen Locher ruled, siding with the artist.
Later in the order, Locher added that “under any fair reading, the demolition or removal of the artwork falls within the scope of this provision” as it unquestionably would “damage, alter, relocate, modify, or change the work.”
Locher said that the questions to be determined by the court are whether the provisions of Miss’s agreements with the museum supersede her rights for the protection of the work to a degree that the museum would have the authority to demolish it.
The judge also noted that the DMAC received a permit from the city for the demolition of the artwork but that “there is no evidence in the record to suggest that the city required the demolition.”
This means Miss’s victory may not last. Locher said the court partly agrees with the museum. If the city had required the DMAC to repair or remove her work, the museum could have had the authority to do so. However, Locher said, as it stands, no conflict exists between the DMAC’s commitments to Miss and rights it possesses with respect to the city.
Locher further wrote in his order that the evidence Miss has provided to support her claim under VARA “is enough for present purposes” to establish that she has a “fair chance” of succeeding on her claims that the piece is a recognized work of stature. “However, Miss almost certainly will need to present additional evidence down the road,” Locher wrote. He also decided not to address the possibility that her work could be excepted from VARA, postponing such discussions for the preliminary injunction stage.
In court documents offering its resistance ahead of the judge’s decision, the DMAC argued that the installation’s “ephemeral nature” is the piece’s aesthetic—and the exact reason it should be removed.
“The Double Site has been battered by Iowa’s dramatic weather cycles, floods, rampant vandalism, and the wear and tear of everyday use,” court documents read. “Nonetheless, the Art Center diligently repaired and restored individual elements of the Double Site.”
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