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FOR PUBLICATION

UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

SIMON CHEFFINS and GREGORY


JONES,
Plaintiffs-Counter-DefendantsAppellants,

No. 12-16913
D.C. No.
3:09-cv-00130-RAM

v.
OPINION
MICHAEL B. STEWART,
Defendant-Counter-PlaintiffAppellee.

Appeal from the United States District Court


for the District of Nevada
Robert A. McQuaid, Magistrate Judge, Presiding
Argued and Submitted October 8, 2014
San Francisco, California
Filed June 8, 2016
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
OScannlain and M. Margaret McKeown, Circuit Judges.
Opinion by Judge OScannlain;
Concurrence by Judge McKeown

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CHEFFINS V. STEWART
SUMMARY*

Visual Artists Rights Act


The panel affirmed the district courts judgment in favor
of the defendant in an action under the Visual Artists Rights
Act and Nevada law.
Plaintiffs transformed a used school bus into La Contessa,
a mobile replica of a 16th-century Spanish galleon for use at
the Burning Man Festival. After the defendant took
possession of the land on which La Contessa was stored, he
burned its wooden structure so that a scrap metal dealer could
remove the underlying school bus from his property.
Affirming the district courts summary judgment on the
VARA claim, the panel held that La Contessa was applied
art and therefore was not covered by VARAs protection of
artists rights of integrity and attribution in works of visual
art. Agreeing in large part with the Second Circuits analysis,
the panel held that an object constitutes a piece of applied
artas opposed to a work of visual artwhere the object
initially served a utilitarian function and the object continues
to serve such a function after the artist makes embellishments
to it.
The panel held that at trial on the plaintiffs conversion
claim, the district court did not abuse its discretion in
excluding expert testimony, nor in instructing the jury on
abandoned property, lost profits, and punitive damages. The
*

This summary constitutes no part of the opinion of the court. It has


been prepared by court staff for the convenience of the reader.

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district court also did not abuse its discretion in admitting


evidence of drug paraphernalia surrounding La Contessa as
it sat on the defendants property.
Finally, the panel held that the district court did not err in
awarding attorneys fees to the defendant after the plaintiffs
rejected an offer of judgment made under Nevada law.
Concurring, Judge McKeown expressed concern with the
majoritys definition of applied art. She wrote that the right
question to ask is whether the primary purpose of the work as
a whole is to serve a practical, useful function, and whether
the aesthetic elements are subservient to that utilitarian
purpose.

COUNSEL
Paul E. Quade (argued), Quade Law, Ltd., Reno, Nevada,
Plaintiff-Appellants.
Keegan G. Low (argued) and Kristen L. Martini, Robison,
Belaustegui, Sharp & Low, Reno, Nevada, for DefendantAppellee.

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CHEFFINS V. STEWART
OPINION

OSCANNLAIN, Circuit Judge:


We must decide whether the Visual Artists Rights Act
applies to a used school bus transformed into a mobile replica
of a 16th-century Spanish galleon.
I
A
Plaintiffs Simon Cheffins and Gregory Jones, along with
a number of volunteers, built the La Contessa, a replica of a
16th-century Spanish galleon for use at the Burning Man
Festival.1 Cheffins began his creation by acquiring a used
school bus. He and Jones then designed and constructed the
galleon facade, including a hull, decking, masts, and a handcrafted figurehead. These elements and the bus were then
transported to the Black Rock Desert in northern Nevada, the
site of Burning Man, and assembled. When completed, the La
Contessa was approximately sixty feet wide and sixteen feet
long with a mast over fifty feet tall.
The La Contessa first appeared at the Festival in 2002.
Festival participants took rides on the La Contessa, and at
least two weddings were performed on its deck. It reappeared
in 2003 and 2005. In 2003, it was used as part of a marching
band performance, and, in 2005, it was the centerpiece of a
childrens treasure hunt, among other things.

As Cheffins and Jones helpfully explain, Burning Man is an art and


countercultural festival held each year for the week preceding Labor Day.

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After the 2002 Festival, Cheffins and Jones stored the La


Contessa on property owned by Festival organizers. After the
2003 and 2005 Festivals, Cheffins and Jones stored the La
Contessa on land in Nevada held in life estate by one Joan
Grant, who had given them permission to do so. In late 2005,
however, Grants home burned down, causing her to abandon
the life estate. Thereafter, defendant Michael Stewart took
possession of the land in fee simple through a limited liability
company.
Cheffins and Jones did not relocate the La Contessa after
the change of property ownership. Rather, it sat unmoved on
Stewarts land until December 2006. Sometime during that
month, Stewart intentionally burned the wooden structure of
the La Contessa so that a scrap metal dealer could remove the
underlying school bus from his property.
B
Cheffins and Jones filed this suit in the District of Nevada
in March 2009, alleging that Stewart violated the Visual
Artists Rights Act, 17 U.S.C. 106(A) (VARA), and
committed common law conversion when he destroyed the La
Contessa. After cross motions for summary judgment,
Magistrate Judge Robert McQuaid dismissed Cheffins and
Joness claim under the VARA, concluding that the La
Contessa was applied art and so not protected by the
statute.2 Cheffins and Joness conversion claim proceeded to
trial before a jury, which found in favor of Stewart, who then
moved for and was granted an award of attorneys fees under

The parties consented to proceed before a magistrate judge under


28 U.S.C. 636(c).

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Federal Rule of Civil Procedure 54(d)(2) and Nevada state


law.
II
In this timely filed appeal, Cheffins and Jones contend
that the trial court erred when it granted summary judgment
on their VARA claim and that Stewart was not entitled to
attorneys fees. Cheffins and Jones also appeal several
evidentiary rulings, assert that the trial court gave several
deficient jury instructions, and contend that the trial court
erred when it failed to grant summary judgment on their
conversion claim.
A
The VARA was enacted in 1990 as an amendment to the
Copyright Act. 17 U.S.C. 106A. The purpose of VARA is
to protect two moral rights of artiststhe rights of
integrity and attribution. Cort v. St. Paul Fire & Marine
Ins. Cos., 311 F.3d 979, 98485 (9th Cir. 2002) (citing H.R.
Rep. No. 514, 101st Cong., 2nd Sess. 5 (1990)). The right of
integrity allows the [artist] to prevent any deforming or
mutilating changes to his work, even after the title in the work
has been transferred. Id. at 985 (citation omitted and internal
quotation marks omitted) (alteration in original). The right
of attribution allows the artist to be recognized by name as
the creator of a work. Id. In order to provide those
protections, the VARA states that the author of a work of
visual art shall have the right, among other things, to
prevent any intentional distortion, mutilation, or other
modification of [a] work which would be prejudicial to his or
her honor and to prevent any destruction of a work of

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recognized stature, and any intentional or grossly negligent


destruction of that work . . . . 17 U.S.C. 106A(a).
As the text of the statute shows, the VARA only applies
to works of visual art. It does not define the term work of
visual art, but the VARA is part of the Copyright Act, which
defines work of visual art in the affirmative and in the
negative. A work of visual art is:
(1) a painting, drawing, print, or sculpture,
existing in a single copy, in a limited edition
of 200 copies or fewer that are signed and
consecutively numbered by the author, or, in
the case of a sculpture, in multiple cast,
carved, or fabricated sculptures of 200 or
fewer that are consecutively numbered by the
author and bear the signature or other
identifying mark of the author; or
(2) a still photographic image produced for
exhibition purposes only, existing in a single
copy that is signed by the author, or in a
limited edition of 200 copies or fewer that are
signed and consecutively numbered by the
author.
17 U.S.C. 101. On the other hand, a work of visual art is
not:
(A)(i) any poster, map, globe, chart, technical
drawing, diagram, model, applied art, motion
picture or other audiovisual work, book,
magazine, newspaper, periodical, data base,

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electronic information service, electronic
publication, or similar publication;
(ii) any merchandising item or advertising,
promotional, descriptive, covering, or
packaging material or container;
(iii) any portion or part of any item described
in clause (i) or (ii).

Id. (emphasis added).


B
On summary judgment, Stewart asserted, and the trial
court subsequently concluded, that the La Contessa was not
a work of visual art because it was applied art. Whether
the trial court properly granted summary judgment on the
VARA claim turns on whether the La Contessa was a work
of visual art. The parties assert that this question, in turn,
depends on whether it was applied art.3

Even if the La Contessa were not applied art it is not clear that it
would qualify for protection under the VARA. After all, the VARAs
definition of work of visual art operates to narrow and focus the statutes
coverage; only a painting, drawing, print, or sculpture, or an exhibition
photograph will qualify. Kelley v. Chicago Park Dist., 635 F.3d 290, 300
(7th Cir. 2011) (internal quotation marks omitted). While the trial court
concluded that the La Contessa was a sculpture, we need not further
address the issue because it is not raised on appeal.

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III
A
The VARA does not define the term applied art, and
federal courts have rarely had occasion to interpret its
meaning. In Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d
Cir. 1995), the Second Circuit held that a sculpture
constructed of portions of a school bus and affixed to a wall
in a building lobby was not applied art. Id. at 83. It
explained that the term applied art means two-and threedimensional ornamentation or decoration that is affixed to
otherwise utilitarian objects. Id. at 8485 (internal quotation
marks omitted). The court further explained that the sculpture
was not applied art simply because it was affixed to the
lobbys floor, walls, and ceiling because [i]nterpreting
applied art to include such works would render meaningless
VARAs protection for works of visual art installed in
buildings. Id. at 85.
The Second Circuit provided an additional gloss on what
constitutes a work of visual art, and by extension what
constitutes applied art, in Pollara v. Seymour, where it
explained that the VARA may protect a sculpture that looks
like a piece of furniture, but it does not protect a piece of
utilitarian furniture, whether or not it could arguably be called
a sculpture. 344 F.3d 265, 269 (2d Cir. 2003). The court
went on to hold that an elaborate painted banner was not a
work of visual art eligible for protection under the VARA.
Id. at 271.
We agree in large part with the Second Circuits analysis.
As the Second Circuit suggested, the focus of our inquiry
should be on whether the object in question originally

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wasand continues to beutilitarian in nature. Such a focus


comports with dictionary definitions of the term applied
art.4 For example, Websters Dictionary defines applied
art as employed in the decoration, design or execution of
useful objects. The Merriam Webster Dictionary 105 (3d ed.
1974) (emphasis added). Similarly, the Oxford English
Dictionary explains that one definition of applied is put to
practical use and lists applied arts as a frequent application
of the term. The Oxford English Dictionary (2d ed. 1989).
These definitions suggest that, in its ordinary meaning,
applied art consists of an object with a utilitarian function that
also has some artistic or aesthetic merit.
Further, this approach makes sense in the statutory
context in which applied art is used in 17 U.S.C. 101.
Applied art is enumerated in a list that also contains, inter
alia, maps, globes, charts, technical drawings, diagrams,
models, newspapers, periodicals, data bases, and electronic
information services. 17 U.S.C. 101. The fact that the other
items in the list are utilitarian objects leads us to conclude
that the listed items are related by their practical purposes and
utilitarian functions, requiring a focus on utility when
construing the term applied art.5

We adopt the common practice of consulting dictionary definitions


to clarify the ordinary meaning of terms used in a statute but not defined
therein. Johnson v. Aljian, 490 F.3d 778, 780 (9th Cir. 2007). We consult
the edition [of the dictionary] in print when Congress enacted the
VARA. Id.
5
Under the canon of noscitur a sociis statutory terms grouped in a list
should be given related meaning and the fact that several items in a list
share an attribute counsels in favor of interpreting the other items as
possessing that attribute as well. Rosebrock v. Mathis, 745 F.3d 963, 976
(9th Cir. 2014) (quoting United States v. Kimsey, 668 F.3d 691, 701 (9th

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11

We therefore hold that an object constitutes a piece of


applied artas opposed to a work of visual artwhere
the object initially served a utilitarian function and the object
continues to serve such a function after the artist made
embellishments or alterations to it.6 This test embraces the
circumstances both where a functional object incorporates a
decorative design in its initial formulation, and where a
functional object is decorated after manufacture but continues
to serve a practical purpose. Conversely, applied art would
not include a piece of art whose function is purely aesthetic
or a utilitarian object which is so transformed through the
addition of artistic elements that its utilitarian functions cease.
B
We respond briefly to the concern expressed in the
concurrence that the standard we adopt today may not be
workablethat it raises difficult questions regarding where
exactly the line defining applied art will be drawn. See
Concurrence at 22. The analysis we adopt today directs the
courts attention away from assessments of an objects artistic
merit and instead toward the objects practical utility. The
standard is relatively simple: where a functional object,
despite claims of artistic merit, continues to serve a utilitarian

Cir. 2012)); see also Antonin Scalia and Bryan Garner, Reading Law: The
Interpretation of Legal Texts 19598 (2012) (discussing the noscitur a
sociis canon).
6

With recognition that nearly every object on which art is installed will
be in some sense utilitarian, we caution that the utilitarian function must
be something other than mere display of the work in question. See also
17 U.S.C. 101 (A useful article is an article having an intrinsic
utilitarian function that is not merely to portray the appearance of the
article or to convey information.).

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purpose, it is applied art. Although the answers to some of


the questions regarding this standard may be clear,7 resolution
of the case before us does not require us to provide a
comprehensive inventory of all the objects that will or will
not meet the definition of applied art.
Indeed, the call for a more textured and flexible
definition of applied art, Concurrence at 22, raises even
greater concerns of line drawing. The concurrence would
have judges evaluate [a] work as a whole, to determine
whether the artistic creation is subservient to its useful
function. Id. at 28. Such an analysis necessarily requires
courts to express judgments regarding the importance of an
objects artistic qualities, and to determine whether those
qualities predominate over the objects non-artistic utility.
Even approached from the perspective of a reasonable
observer, id. at 29, the question for a court remains whether
an objectively reasonable person would conclude that a
creation is more art than useful object. How different
judges could answer such a question on a consistent basis is
anything but clear.
Any attempt to guide judicial determinations of an
amorphous concept like applied art is unlikely to be
completely satisfying to all. But the approach we adopt today

For example, we have explained that the transformation from


utilitarian object to work of art, Concurrence at 22, occurs where an
objects utilitarian functions cease. We can leave for another case
whether there might be some de minimis exception to this standard, where
an object continues to serve only the most trivial of utilitarian functions.
Further, we have explained that our focus is on objects that in fact
continue to serve real utilitarian functions (as opposed to those which may
retain the ability to serve utilitarian functions, or those which at one point
in history served such functions, see id.).

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instructs courts to focus precisely on an objects continuing


utilityand not to ask whether that utility is somehow
subservient to an artistic creation. Difficult cases may still
arise, but our standard aims to limit the situations in which
they do.
C
We now apply this standard to the facts of this case.
The La Contessa began as a simple school busan object
which unquestionably served the utilitarian function of
transportation. To transform the bus into the La Contessa,
Cheffins and Jones adorned it with the visual trappings of a
16th-century Spanish galleon. While the La Contessas
elaborate decorative elements may have had many artistic
qualities, the La Contessa retained a largely practical function
even after it had been completed. At Burning Man, the La
Contessa was used for transportation, providing rides to
festival-goers, hosting musical performances and weddings,
and serving as a stage for poetry and acrobatics shows.
Indeed, the La Contessa often was driven about the Festival
grounds and was banned from the Festival in 2004 because
its unsafe driving practices far exceeded community
tolerance and out-weighed the visual contribution it made.
Under the definition we adopt today, the La Contessa
plainly was applied art. It began as a rudimentary utilitarian
object, and despite being visually transformed through
elaborate artistry, it continued to serve a significant utilitarian
function upon its completion. As applied art, the La
Contessa was not a work of visual art under the VARA and
therefore not eligible for its protection. Therefore, the trial

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court properly granted summary judgment to Stewart on


Cheffins and Joness VARA claim.
IV
A
Cheffins and Jones next argue that the trial court abused
its discretion when it excluded the testimony of Joanne
Northrup and Diedre DeFranceaux, two of their expert
witnesses, and when it refused to allow Cheffins and Jones to
supplement other expert reports. After conducting a lengthy
hearing on the matter, the trial court concluded that the
proffered testimony would be unduly speculative. The trial
court did not abuse its considerable discretion in this case.
We have repeatedly explained that a trial court not only has
broad latitude in determining whether an experts testimony
is reliable, but also in deciding how to determine testimonys
reliability. Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1017 (9th Cir. 2004) (internal quotation marks
omitted).
B
Cheffins and Jones raise two issues related to the trial
courts jury instructions on abandoned property. First, they
contend that the trial court abused its discretion when it
declined to instruct the jury on abandoned property, lost
profits, and punitive damages based on Nevada Revised
Statues 487.210487.250. The trial court did not abuse its
discretion. The statutory scheme only applies to vehicles
abandoned on public land, and it is uncontested that the La

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Contessa remained on Stewarts private land until its


destruction. N.R.S. 487.235.8
Second, Cheffins and Jones contend that the trial court
improperly instructed the jury on abandonment under Nevada
law, asserting that the given instruction failed to explain the
required showing of intent. The given instruction, however,
explained that abandonment may be inferred from . . . acts
done and thus comported with Nevada law. See J.H. Mallett
v. Uncle Sam Gold & Silver Mining Co., 1 Nev. 188, 20405
(1865) (holding that the moment the intention to abandon
and the relinquishment of possession unite, the abandonment
is complete).
C
Cheffins and Jones next assert that the trial court abused
its discretion by failing to include jury instructions on lost
profits and punitive damages resulting from the destruction of
the La Contessawhich the court concluded were unduly
speculative. The court did not abuse its discretion. Moreover,
even if the district court had erred, such error was harmless
because the jury found in favor of Stewart on Cheffins and
Joness conversion claim, meaning that there were no
damages to award in any case. See Kennedy v. S. Cal. Edison
Co., 268 F.3d 763, 770 (9th Cir. 2001) (explaining that
[h]armless error review applies to jury instructions in civil
cases).

Cheffins and Joness related contention that the trial court should have
provided a jury instruction based on N.R.S. 118A.460 fails for a similar
reason. That statute applies to landlord-tenant relationships, and is
inapplicable to the facts of this case.

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D

Cheffins and Jones also contend that the trial court erred
when it admitted evidence of drug paraphenalia surrounding
the La Contessa as it sat on Stewarts property. The trial court
first determined that it would not admit such evidence, but
then reversed itself and allowed the evidence simply to show
the condition of things around the ship when a witness
visited the La Contessa. We have previously explained that
evidentiary rulings should not be reversed absent clear abuse
of discretion and some prejudice, S.E.C. v. Jasper, 678 F.3d
1116, 1122 (9th Cir. 2012), and we see neither clear abuse of
discretion nor prejudice here. Such evidence was relevant to
the value of the La Contessa at the time of its destruction, and
the trial court provided the jury with an appropriate limiting
instruction.
E
Cheffins and Jones next contend that the trial court erred
when it denied their motion for partial summary judgment on
their conversion claim. The conversion claim subsequently
was presented to a jury, which returned a verdict in favor of
Stewart. Cheffins and Joness appeal therefore fails at the
outset, because we do not review the denial of summary
judgment when the case has gone to trial. Affordable Hous.
Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir.
2006); see also Lum v. City & Cty. of Honolulu, 963 F.2d
1167, 1170 (9th Cir. 1992) (concluding that there is no need
to review denials of summary judgment after there has been
a trial on the merits, and dismissing appeal).

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V
Finally, Cheffins and Jones challenge the courts award
of attorneys fees to Stewart, which the court made after they
rejected an offer of judgment made under Nevada law.
Federal Rule of Civil Procedure 54(d) allows a party to
recover attorneys fees, when, among other things, a motion
specifies the statute, rule, or other grounds entitling the
movant to the award. Moreover, we have recognized that,
under Nevada law, a prevailing [party] is entitled to recover
attorneys fees if an offer of judgment is rejected. MRO
Commcns, Inc. v. AT&T, 197 F.3d 1276, 1281 (9th Cir.
1999); see Nev. R. Civ. P. 68.
Cheffins and Jones assert that the timing requirements of
Federal Rule of Civil Procedure 68 apply to an offer of
judgment made under state law, rendering the award of
attorneys fees improper because the offer of judgment on
which the trial court based its award would not have been
timely. Stewart urges that Rule 68 does not apply.
We agree with Stewart. Rule 54 provides a federal
procedural mechanism for moving for attorneys fees that are
due under state law. Med. Protective Co.v. Pang, 740 F.3d
1279, 1283 (9th Cir. 2013). Therefore, Nevadas offer of
judgment rules and statutes . . . provide the applicable
procedure for awarding attorneys fees in a case like this
one, where the only claim at the time Stewart made his offer
of judgment was a state law conversion claim. MRO,
197 F.3d at 128183 (In an action where a district court is
exercising its subject matter jurisdiction over a state law
claim the state law denying the right to attorneys fees or
giving a right thereto, which reflects a substantial policy of
the state, should be followed. (quoting Alyeska Pipeline

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Serv. Co. v. Wilderness Socy, 421 U.S. 240, 259 n.31


(1975))). Because Federal Rule of Civil Procedure 54(d)(2)
provides the applicable procedure for awarding attorneys
fees, and because Stewarts offer of judgment complied with
the underlying Nevada state law rule, it was timely for
purposes of the trial courts award of attorneys fees.9
AFFIRMED.10

McKEOWN, Circuit Judge, concurring:


I write separately to express my concern with the
majoritys definition of applied art, which centers on whether
an object has or retains a utilitarian function. Maj. Op. 10.
This focus runs the risk of unduly narrowing the protections
of artists under the Visual Artist Rights Act of 1990,
17 U.S.C. 106A (VARA), and not focusing on the work
as a whole. Although the majoritys formulation may protect
the clearest casesthose works that are purely aesthetic or
so transformed through the addition of artistic elements that
[their] utilitarian functions cease, Maj. Op. 11,it leaves

While the parties did not brief the issue, we agree with the trial court
that there is no conflict between Federal Rule of Civil Procedure 68 and
Nevada Rule of Civil Procedure 68. See Goldberg v. Pac. Indem. Co.,
62 F.3d 752, 756 n.7 (9th Cir. 2010) (explaining that the MRO opinion is
not relevant to whether Arizonas offer of judgment rule conflicts with
Federal Rule of Civil Procedure 68 because, unlike Arizona, Nevadas
rule allows for recovery of attorneys fees).
10

The denial of Cheffins and Joness motion for summary judgment is


not appealable and their appeal from that order is therefore DISMISSED.
Affordable Hous. Dev. Corp., 433 F.3d at 1193.

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other casessuch as works of art that incorporate utilitarian


elements, or that could be put to practical purposesout in
the cold. To better effectuate the purpose of VARA, we need
a more nuanced definition of applied art that balances
between the risk of unduly restricting VARAs reach and the
risks of turning judges into art critics or consigning to
litigation every work of art that includes some utilitarian
function. In determining whether a work is applied art, the
right question to ask is whether the primary purpose of the
work as a whole is to serve a practical, useful function, and
whether the aesthetic elements are subservient to that
utilitarian purpose. Because the bus/Spanish galleon La
Contessa is applied art under either standard, I concur in the
judgment as well as parts I, II, IV, and V of the panel opinion.
VARA enshrined the concept of droit moral, or moral
rights, in American law to a limited extent. Cheryl Swack,
Safeguarding Artistic Creation and the Cultural Heritage: A
Comparison of Droit Moral Between France and the United
States, 22 Colum.-VLA J.L. & Arts 361, 363 (1998). Long
recognized in Europe, moral rights afford protection for the
authors personal, non-economic interests in receiving
attribution for her work, and in preserving the work in the
form in which it was created, even after its sale or licensing.
Jane C. Ginsburg, Copyright in the 101st Congress:
Commentary on the Visual Artists Rights Act and the
Architectural Works Copyright Protection Act of 1990,
14 Colum.-VLA J.L. & Arts 477, 478 (1990).
VARA protects the moral rights of attribution and
integrity, but only for a narrow subset of the works of visual
art already protected under the Copyright Act. 3 Nimmer on
Copyright 8D.06[A][2]. Thus, the creator of a qualifying
painting, drawing, print, or sculpture, or still photographic

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image produced for exhibition purposes only, 17 U.S.C.


101, may prevent any intentional distortion, mutilation, or
other modification of [the] work which would be prejudicial
to his or her honor and to claim authorship of the work.
Id. 106A(a). Coverage is limited to these listed
categories of works of visual art. The statute also prohibits
the destruction of work of recognized stature. Id.
106A(a)(3)(B). As a result, acts of so-called art murder
like the removal of Diego Riveras mural from Rockefeller
Center, now have limits.1 Thus, when Kent Twitchells mural
depicting artist Ed Rucha was painted over, Twitchell sued
under VARA; he ultimately settled for $ 1.1 million.2
The protections provided by VARA are analogous to
those protected by Article 6bis of the Berne Convention.
H.R. Rep. No. 101-514, at 5 (1990).3 Affording artists these
1

In 1934, Riveras unfinished mural was removed from the wall of the
RCA building and destroyed over the course of a weekend. The
Rockefellers apparently made this decision due to Riveras refusal to omit
the figure of Lenin from his work. See Rivera RCA Mural is Cut from
Wall, N.Y. Times, February 13, 1934, at 21. Indeed, the mutilation of a
Picasso painting, Trois Femmes, by two Australian entrepreneurs was
significant to the passage of VARA. See H.R. Rep. No. 101-514, at 17.
2

Although Twitchells generous settlement was heralded as a


vindication of artists moral rights under VARA, the case provides no
judicial precedent on this matter. Charles Cronin, Dead on the Vine:
Living and Conceptual Art and VARA, 12 Vanderbilt J. Ent. & Tech. L.
209, 219 n.49 (2010).
3

The Berne Convention secures the protection of the rights of authors


in their literary and artistic works, Berne Convention for the Protection
of Literary and Artist Works, art. 1, July 24, 1971, S. Treaty Doc. No. 9927 (1986), including moral rights [t]o claim authorship and to object
to certain modifications and other derogatory actions, id. at art. 6bis. The
United States acceded to the Berne Convention in 1988, but did not

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CHEFFINS V. STEWART

21

rightswhich are otherwise largely not recognized in our


intellectual property systemhelps foster a climate of
artistic worth and honor that encourages the author in the
arduous act of creation. Id. (internal quotations omitted);
see also Kelley v. Chicago Park Dist., 635 F.3d 290, 29698
(7th Cir. 2011) (detailing the history of VARA).
Although VARA amended the Copyright Act, its unique
protections do not extend to every copyrightable work.
Rather, the statute may be invoked only if the painting,
drawing, print, sculpture, or still photographic image
produced for exhibition purposes only is part of a limited
edition of 200 copies or fewer that have been signed and
consecutively numbered by the author. 17 U.S.C. 101.
Significantly, a work does not fall within VARAs protection
if, among other exclusions, it is mass-produced, intended for
use in advertising, or is applied art. Id.
This case hinges on that final exceptionapplied art. The
parties agree that La Contessa, a Spanish galleon built on the
chassis of a school bus by Cheffins and Jones, was a
sculpture. The parties also do not contest that La Contessa
was a work of recognized stature. Thus VARA would
prohibit the destruction of La Contessa unless it was a work
of applied art.
The majority focuses the inquiry on whether the object
in question originally wasand continues to beutilitarian
in nature. Maj. Op. 910. Thus, the majority holds that an
object constitutes a piece of applied artas opposed to a
work of visual artwhere the object initially served a
recognize moral rights until Congress enacted VARA two years later.
Swack, supra at 363.

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22

CHEFFINS V. STEWART

utilitarian function and the object continues to serve such a


utilitarian function after the artist made embellishments or
alterations to it. Maj. Op. 11. This definition pays
insufficient heed to the character of the work as a whole and
fails to clarify when the product of artistic creation has
crossed the threshold of functionality that transforms it from
visual to applied art.
The central focus of our inquiry should be on whether a
work is primarily directed to a utilitarian purpose. The
majoritys bare statement provides scant guidance. At what
point does the transformation from utilitarian object to work
of art occur? Is any residual utilitarian function sufficient to
consign a work to the applied art label, or must the
utilitarian function be significant? Does it matter whether an
object within a work retains a possible, but unused or
impractical, utilitarian function versus whether it continues to
be used for its original purpose? What is the magic dividing
line that informs our legal determination? These questions
highlight the need for a more textured and flexible definition
of applied art.
Defining the term applied art is no easy task. To be
sure, judicial attempts to categorize artistic creations are
fraught with difficulties. As Justice Holmes observed long
ago, judges make terrible art critics: It would be a dangerous
undertaking for persons trained only to the law to constitute
themselves final judges of the worth of pictorial illustrations.
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251
(1903). There is some irony in the fact that VARA was
enacted as part of the Judicial Improvements Act of 1990,
Pub. L. No. 101-650, which created eighty-five new federal
district and appellate judgeships. Thankfully, apart from
occasional fair use cases under the Copyright Act, these

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CHEFFINS V. STEWART

23

judges have been able to devote themselves to tasks other


than critiquing paintings and sculptures. Although VARA
does not ask us to assess the beauty or value of art, attempting
to discern whether a unique creation is visual or utilitarian art
poses similar challenges.
The difficulty of our job is compounded because VARA
provides no definition of applied art. Leaders of the art
community warned Congress that VARA does not offer firm
definitions of applied and visual art, leaving open for
conjecture the kinds of art and artists eligible for protection.
Hearing on H.R. 3221, Visual Artists Rights Act of 1987,
Before the Subcomm. on Courts, Civil Liberties and the
Admin. of Justice of the H. Comm. on the Judiciary, 100th
Cong. 136 (1988) (testimony of the Association of Art
Museum Directors, American Arts Alliance, and American
Association of Museums). Congress was unmoved: the
House Report accompanying the bill unhelpfully states that
the definition of applied art is self-explanatory and instructs
courts construing the statute to use common sense as well
as the generally accepted standards of the artistic
community. H.R. Rep. No. 101-514, at 11, 13.
Although many court decisions have addressed applied
art, these cases provide little guidance on how to distinguish
applied from visual art. The issue in nearly all applied art
cases is whether the work was copyrightable applied art or
instead a noncopyrightable work of industrial design. See,
e.g., Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970, 972 (6th
Cir. 1983) (Congress intended to distinguish between
copyrightable works of applied art and uncopyrighted works
of industrial design. (quoting H.R. Rep. No. 1476, 94th
Cong., 2d Sess. 54)); Norris Indus., Inc. v. Intl Tel. & Tel.
Corp., 696 F.2d 918, 920 (11th Cir. 1983) ([There is a]

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CHEFFINS V. STEWART

distinction between works of applied art eligible for copyright


protection and industrial designs ineligible for protection.);
Eltra Corp. v. Ringer, 579 F.2d 294, 297 (4th Cir. 1978)
(noting the precise line between copyrightable works of
applied art and uncopyrighted works of industrial design).
The analysis in these cases is driven by the principle that
works may unquestionably be applied art, such as a detailed
carving on the back of a chairan obviously utilitarian
objectbut may also enjoy certain copyright protection.4
Whether such a work falls under VARAs protections is a
different question. Thus, while these opinions have coalesced
around a definition of applied art for the purpose of copyright
protection as pictorial, graphic, and sculptural works that are
intended to be or have been embodied in useful articles, 84A Nimmer on Copyright 102, they do not provide an
answer under VARA because VARA protects a new and
different genus of works of visual art, 3 Nimmer on
Copyright 8D.06[A][2].
VARAs protections cannot be limited only to works
entirely devoid of any utilitarian purpose. As Judge Gesell
once noted: Art through the ages has often served a
utilitarian purpose[]. Esquire, Inc. v. Ringer, 414 F. Supp.
939, 941 (D.D.C. 1976), revd 591 F.2d 796 (D.C. Cir. 1978).
Many outstanding sculptures, including the Caryatids of the
Acropolis and the monumental carvings of Ramses at the
temple of Karnak are in fact columns that provided buildings
with structural integrity. Medieval tapestries not only

Indeed, examples of original pictoral, graphic, and sculptural works


protected by copyright include dolls and toys, mosaics, and stained glass
designs. United States Copyright Office, Circular 40.0915, Copyright
Registration for Pictorial, Graphic, and Sculptural Works (2015).

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CHEFFINS V. STEWART

25

represented a form of fine art, but also ke[pt] castles and


cathedrals free from draft. William S. Lieberman, Modern
French Tapestries, 6 Metropolitan Museum of Art Bulletin
142, 142 (1948). Of course, the famous Bayeux tapestries,
which depict events leading to the Battle of Hastings, retain
their utilitarian function to some extent: they could still be
used to keep a drafty castle warm. Likewise, Tracy Emins
My Bed, displayed at the Tate Britain, incorporates Emins
real bed as a monument to the heartache of a relationship
breakdown.5 The bed arguably retains its original utilitarian
functionit remains a bed, and could still be slept inbut it
is no longer meant or used for this utilitarian purpose.
Rather, like the Bayeux tapestries, My Bed is now appreciated
and viewed as a work of creative expression and, when
viewed as a whole, the utilitarian object has become part of
a visual art piece.
The modern era abounds with examples of fine art that
serve some utility. Perhaps the most famous sculpture of the
modern eraRodins The Thinkerwas conceived when the
artist was designing a set of monumental doors titled The
Gates of Hell.6 Doors, of course, are utilitarian objects that
facilitate the movement of people into and out of buildings.
Likewise, a young Pablo Picasso painted a massive
background piece for the ballet Le Tricorne. Although that
painting surely served some utilitarian purpose as a stage
5

Hannah Ellis-Petersen, Tracy Emins Messy Bed Goes on Display at


Tate for First Time in 15 Years, The Guardian (Mar. 30, 2015, 10:41 AM),
http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messybed-displayed-tate-britain-first-time-in-15-years.
6

Rodin envisioned Dante sitting and contemplating the scenes of eternal


damnation portrayed on the Gates. Albert E. Elsen, Rodins Thinker and
the Dilemmas of Modern Public Sculpture 43 (1985).

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CHEFFINS V. STEWART

curtain, following that debut, it has been displayed as a


painting for half a century. The painting was the focus of
intense debate when it was removed last year from the Four
Seasons restaurant in New Yorks Seagram Building, where
it had hung since 1959.7 Some sculptures designed by Dale
Chihuly are fantastically artistic and original and yet could
also serve a utilitarian purpose of diffusing fresh water or
serving as a room divider. The artistic and utilitarian aspects
are entwined in some of Chihulys pieces.8
It is easy to imagine a sculpture composed of an array of
utilitarian objects. VARAs legislative history confirms this
situation: Congress emphasized that because [a]rtists may
work in a variety of media, and use any number of materials
in creating their works . . . . whether a particular work falls
within the definition should not depend on the medium or
materials used. H.R. Rep. No. 101-514, at 11. Indeed, a
Florida plumber/artist who created a sculpture with auto
parts, plumbing fixtures and scrap wiring, found himself in
the middle of VARA litigation when the junk was
removed.9 Automatically relegating these pieceswhich are
7

Le Tricorne has found a new home at the New York Historical Society.
Benjamin Muller, After 55 Years in Vaunted Spot, a Picasso Is Persuaded
to Curl, N.Y. Times, Sept. 7, 2014, at A14.
8

Chihulys work is heralded for render[ing] meaningless the


distinctions between utilitarian product and art, art and craft, beauty and
function. Patterson Sims, Suola di Chihuly: Venezia and Seattle, in Dale
Chihuly: Installations 19641992 (1992).
9
The story of this fascinating dispute is outlined in Christopher J.
Robinsons note: The Recognized Stature Standard in the Visual Artists
Rights Act, 68 Fordham L. Rev. 1935, 1958 (2000). The parties did not
contest that the work was a sculpture, but fought bitterly over whether the
visual art was of recognized stature. Id.

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CHEFFINS V. STEWART

27

unquestionably works of visual artbeyond the scope of


VARA simply because they may serve some practical
function would undermine the purpose of the law.
The majority alludes to the fact that a work would not
necessarily fall outside VARAs scope simply because it
could possibly serve some practical purpose, concluding that
La Contessa must be applied art because it continued to
serve a significant utilitarian function upon its completion.
Maj. Op. 13. But how significant the utilitarian function must
beeither when a work is initially created, or after it
undergoes artistic modificationscannot be deduced from
the majoritys test for applied art. The analysis must be
more nuanced, and, as a matter of procedure, in some cases,
these issues will raise questions of fact that preclude
summary judgment.
Art dictionaries and reference materials provide useful
guidance on this score. In seeking to distinguish applied art
from fine art, The Concise Oxford Dictionary of Art Terms
states that applied art is Art that is created for useful objects
and remains subservient to the functions of those objects.
The Concise Oxford Dictionary of Art Terms 13 (Michael
Clarke and Deborah Clarke eds., 2d ed. 2010) (emphasis
added). As examples, it lists ceramics, furniture, glass,
leather, metalwork, textiles, arms and armour, clocks, and
jewelry. Id. Likewise, The Thames & Hudson Dictionary
of Art Terms confirms that applied art is Art which is
essentially functional, but which is also designed to be
aesthetically pleasing. The Thames & Hudson Dictionary of
Art Terms 17 (Edward Lucie-Smith ed., 2d ed. 2004)
(emphasis added). This dictionary provides a similar list of
applied art items: furniture, metalwork, clocks, textiles,
[and] typography. Id. The definition of applied art in

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CHEFFINS V. STEWART

materials published by the World Intellectual Property


Organization (WIPO)the body tasked with administering
the Berne Conventionis also helpful. WIPO has defined
applied art as cover[ing] the artistic contributions of the
makers of knick-knacks, jewellery, gold and silverware,
furniture, wallpaper, ornaments, clothing, etc. WIPO, Guide
to the Berne Convention for the Protection of Literary and
Artistic Works 1617 (1978).10
These definitions illustrate that applied art does not
encompass every work that has any conceivable utilitarian
purpose, nor one that incorporates functional objects or
pieces. Rather, the definitions employed by art dictionaries
and the objects they list reflect that the key question is
whether the primary purpose or essence of the work is
utilitarian or functional.
To effect the purpose of VARA and provide guidance for
the art community, I believe courts should evaluate the work
as a whole, asking whether its primary purpose is to serve a
useful function and whether the artistic creation is subservient
to that purpose. If the primary purpose is for the work to be
viewed and perceived as art, then any incidental utilitarian
function will not push it outside the scope of VARA. If a
works primary purpose is functional, however, no amount of
aesthetic appeal will transfer it into visual art subject to
VARAs protections. Determining a works primary purpose
need not constitute a judicial inquiry into the nature of art.
Rather, as in other legal contexts, courts should ask whether

10

T his document is availab le on-line at


f t p : / / f t p . wi p o . i n t / p u b / l i b r a r y/ e b o o k s / h i s t o r i c a l - i p b o o k s /
GuideToTheBerneConventionForTheProtectionOfLiteraryAndArtistic
WorksParisAct1971.pdf

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CHEFFINS V. STEWART

29

a reasonable observer would consider [the work] designed


to a practical degree for a utilitarian or artistic purpose. See
Lozman v. City of Riviera Beach, 133 S. Ct. 735, 741 (2013)
(articulating a primary purpose test for determining
whether an object is a vessel).
In this case, applying the analysis I outline yields the
same result as the majority: La Contessa was applied art. The
school bus-turned-galleon was designed for, and employed
as, a performance venue, restaurant, and means of
transportation around the Burning Man festival. Poets,
acrobats, and bands performed on its decks. It drove revelers
from party to party within Nevadas Black Rock desert. On
various occasions, the galleon was driven at high speeds,
prompting festival organizers to send Cheffins and Jones a
letter condemning its unsafe driving practices. When La
Contessa was not serving this purpose, it was dragged to a
field, covered with a tarp, and left to sit idle for months at a
time. Taken as a whole, this is powerful evidence that the
primary purpose of La Contessa was to serve the utilitarian
functions of performance venue, gathering space, and peoplemover. Although Cheffins and Jones testified passionately
about La Contessas beauty and the artistic expression they
felt it embodiedand it is an impressive work of art in many
respectsI conclude it is applied art because its aesthetic
appeal was subservient to its primary utilitarian purpose.
Thus, the VARA claim fails.
VARA has spawned comparatively little litigation over
the last quarter-century, and I hope that no spasm of artistic
destruction or mutilation changes this trend. However, given
the unique protections under VARA and the inherent
difficulties in defining visual arts and applied arts, the
arts, the art world, and the legal community would benefit

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30

CHEFFINS V. STEWART

from a more nuanced and flexible test for determining the


scope of VARAs protection of artistic works.

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-2, Page 1 of 124

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Tracey Emin

Tracey Emin's messy bed goes on display at


Tate for first time in 15 years
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ins shocking installation My Bed as sweet moment of history


Artist wants visitors to view Cher
heffonce
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and a portrait of a younger

Hannah Ellis-Petersen
Monday 30 March 2015 10.41 EDT
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This article is 1 year old

http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

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Emin: Bed shows the absolute mess and decay of my life

Tracey Emins best known work, her 1998 monument to the heartache of a relationship
breakdown, My Bed, has gone on display at Tate Britain for the first time in 15 years.
The work, which Emin now describes as a portrait of
a young woman, was bought last year by the German
businessman and collector Count Christian
Duerckheim, who has loaned the artwork to the Tate
for at least the next 10 years.
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The auction last July was the first time the artwork had gone on sale since it was bought
by Charles Saatchi in 2000. The sale opened at 650,000, and, after frantic bidding,
was bought minutes later by the YBA dealer and owner of the White Cube gallery Jay
Jopling, on behalf of Duerckheim. I always admired the honesty of Tracey, but I
bought My Bed because it is a metaphor for life, where troubles begin and logics die,
Duerckheim later explained.

http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-2, Page 3 of 124

Tracey Emins My Bed installation returns to Tate Britain for the first time in 15 years, as part of
the BP Walk through British Art display. Photograph: Lauren Hurley/PA

Speaking at the unveiling of the work at Tate Britain, Emin admitted to feeling
16 a bit
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She added: I think now


citedpeople see the bed as a very different thing. With history and
time, the bed now looks incredibly sweet and theres this enchantment to it. I think
people will see it differently as they see me differently. And there are things on that bed
that now have a place in history. Even forms of contraception, the fact that I dont have
periods anymore, the fact that the belt that went round my waist now only fits around
my thigh.
Back in the 90s, it was all about cool Britannia and the shock factor and now I hope, 15
years later, people will finally see it as a portrait of a younger woman and how time
affects all of us. I am still very proud of it and I am grateful that the right person bought
it.

http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-2, Page 4 of 124

Close up of My Bed (1998) by Tracey Emin, a snapshot of the artists life after a traumatic
relationship breakdown. Photograph: Ray Tang/REX

The piece was made by Emin in 1998 when she was living in a council flat,in
Waterloo.
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It shows her real bed at the time in all its embarrassing glory, vwith
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My Bed was first displayed at the
in 1999 when it was nominated for the Turner
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prize. The polarising work
caused such a media frenzy that it pushed the gallerys visitor
cit
numbers up to a record high. It was bought the following year for 150,000 by Charles
Saatchi, an avid collector of YBA art. The piece then went on display at the Saatchi
Gallery, then at County Hall London, and Saatchi is also said to have displayed the bed
in his own dining room.

My Bed has now been installed as part of the newly rehung displays of the Tates
permanent collection. Emin herself was very involved in how the work was to be
presented, and it sits in a gallery alongside two Francis Bacon paintings, his 1951 Study
of a Dog and his 1961 Reclining Woman, as well as six of her drawings from 2014 that
Emin gifted to the Tate to mark the occasion. As with all of the Tates permanent
collection, the artwork will be available for the public to see free of charge.

http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-2, Page 5 of 124

hive

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2, 20

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Artist Tracey Emin. Photograph: Ray Tang/REX

http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-2, Page 6 of 124


Emin said part of the reason she had been so keen to have the work back at Tate Britain
was to have a chance to change peoples original perceptions of the piece.
Its really important to me to show it in context, she said. When I showed it originally
at the Tate Britain as part of the Turner prize, nobody even bothered looking at the
work that surrounded it, even though there were my watercolours, my drawings. So,
whats really great by having the Bacons around it, people will look at the Bacons and
they will understand the connection with the bed and my other drawings. They will see
the bed is art and that, with these incredible artworks around it, it is in good company.
The sentiment was echoed by curator Elena Crippa. Its wonderful to have it back at
the Tate and Tracey was very thrilled to have My Bed coming back here. It is a very
important moment for her as an artist as well as for us as an institution, she said. Its
a new moment for My Bed and a moment to reassess it. It is not just about the media
hype, it is about looking at the formal qualities of the work and thinking about the work
in more historical terms alongside other major figures.
Crippa added: It is a very different cultural presentation of the work. In 1999, it was
displayed as part of the Turner prize, so it was all about being fresh and new, whereas
16
this time, the desire was to contextualise My Bed as part of 700 years of British
2, 20 art and
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There is this sheer vitality of the body that moves in spaces combined with a sense of
internal turmoil. I think the coupling really works very well.
Crippa said she was confident that the work still remained as powerful as it was 15 years
ago, and said the Tate expected it to be a very popular addition to their newly rehung
galleries.
I think it certainly holds its power and it was a wonderful experience to see it literally
unfold in the room, she said. Its still an incredibly vital piece but the main difference
now is that it has become a very significant piece in the trajectory of a now very
established British artist. So, I think the status of the work has changed historically but
certainly hasnt changed in terms of the impact of the piece.
Following its display at Tate Britain, My Bed will be shown at the Turner contemporary
in Margate, Emins home town, followed by Tate Liverpool.

More news

Topics

Tracey Emin

Tate Britain

Art

Francis Bacon

http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

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Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

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http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

Tracey Emin's messy bed goes on display at Tate for first time in 15 years | Art and design | The Guardian

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-2, Page 9 of 124


2016 Guardian News and Media Limited or its affiliated companies. All rights reserved.

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http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-bed-displayed-tate-britain-first-time-in-15-years[6/2/2016 4:19:35 PM]

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Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-3, Page 1 of 5

United States Court of Appeals for the Ninth Circuit


Office of the Clerk
95 Seventh Street
San Francisco, CA 94103
Information Regarding Judgment and Post-Judgment Proceedings
Judgment

This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)

The mandate will issue 7 days after the expiration of the time for
filing a petition for rehearing or 7 days from the denial of a petition
for rehearing, unless the Court directs otherwise. To file a motion to
stay the mandate, file it electronically via the appellate ECF system
or, if you are a pro se litigant or an attorney with an exemption from
using appellate ECF, file one original motion on paper.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(1)

A.

B.

Purpose (Panel Rehearing):


A party should seek panel rehearing only if one or more of the following
grounds exist:

A material point of fact or law was overlooked in the decision;

A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or

An apparent conflict with another decision of the Court was not


addressed in the opinion.
Do not file a petition for panel rehearing merely to reargue the case.
Purpose (Rehearing En Banc)
A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

Case: 12-16913, 06/08/2016, ID: 10006005, DktEntry: 46-3, Page 2 of 5

Consideration by the full Court is necessary to secure or maintain


uniformity of the Courts decisions; or
The proceeding involves a question of exceptional importance; or
The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a
rule of national application in which there is an overriding need for
national uniformity.

(2)

Deadlines for Filing:

A petition for rehearing may be filed within 14 days after entry of


judgment. Fed. R. App. P. 40(a)(1).

If the United States or an agency or officer thereof is a party in a civil case,


the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(a)(1).

If the mandate has issued, the petition for rehearing should be


accompanied by a motion to recall the mandate.

See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the
due date).

An order to publish a previously unpublished memorandum disposition


extends the time to file a petition for rehearing to 14 days after the date of
the order of publication or, in all civil cases in which the United States or an
agency or officer thereof is a party, 45 days after the date of the order of
publication. 9th Cir. R. 40-2.

(3)

Statement of Counsel

A petition should contain an introduction stating that, in counsels


judgment, one or more of the situations described in the purpose section
above exist. The points to be raised must be stated clearly.

(4)

Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))

The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.

The petition must be accompanied by a copy of the panels decision being


challenged.

An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.

If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

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The petition or answer must be accompanied by a Certificate of Compliance


found at Form 11, available on our website at www.ca9.uscourts.gov under
Forms.
You may file a petition electronically via the appellate ECF system. No paper copies are
required unless the Court orders otherwise. If you are a pro se litigant or an attorney
exempted from using the appellate ECF system, file one original petition on paper. No
additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)

The Bill of Costs must be filed within 14 days after entry of judgment.

See Form 10 for additional information, available on our website at


www.ca9.uscourts.gov under Forms.
Attorneys Fees

Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.

All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari

Please refer to the Rules of the United States Supreme Court at


www.supremecourt.gov
Counsel Listing in Published Opinions

Please check counsel listing on the attached decision.

If there are any errors in a published opinion, please send a letter in writing
within 10 days to:

Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 551640526 (Attn: Jean Green, Senior Publications Coordinator);

and electronically file a copy of the letter via the appellate ECF system by using
File Correspondence to Court, or if you are an attorney exempted from using
the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 08/2013

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Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit


BILL OF COSTS
This form is available as a fillable version at:
http://cdn.ca9.uscourts.gov/datastore/uploads/forms/Form%2010%20-%20Bill%20of%20Costs.pdf .
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of
service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A
late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28
U.S.C. 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.
9th Cir. No.

v.
The Clerk is requested to tax the following costs against:

Cost Taxable
under FRAP 39,
28 U.S.C. 1920,
9th Cir. R. 39-1

REQUESTED
(Each Column Must Be Completed)
No. of
Docs.

Pages per
Doc.

TOTAL
COST

Cost per
Page*

ALLOWED
(To Be Completed by the Clerk)
No. of
Docs.

Cost per
Page*

Pages per
Doc.

TOTAL
COST

Excerpt of Record

Opening Brief

Answering Brief

Reply Brief

Other**

TOTAL: $

TOTAL: $

* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
Attorneys' fees cannot be requested on this form.
Continue to next page

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Form 10. Bill of Costs - Continued

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk)


Date

Costs are taxed in the amount of $


Clerk of Court
By:

, Deputy Clerk