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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) ) ) ) Plaintiff, ) ) v. ) ) ) CITY OF CAMBRIDGE, ) a Municipal Corporation ) ) Defendant. ) __________________________________________) RALPH G. BRANCACCIO, Pro Se, __________________________________________

Civil Action No. ________________

COMPLAINT AND JURY DEMAND Plaintiff Ralph G. Brancaccio (“Mr. Brancaccio”), for his Complaint against Defendant City of Cambridge, hereby alleges as follows: Nature of the Action 1. Mr. Brancaccio received and accepted a grant from an agency of the City of

Cambridge for a non-profit public art installation titled “The Y Project.” The City of Cambridge, without notice or authorization, removed the sculptures, extensively damaging them. Mr.

Brancaccio seeks monetary relief for acts of gross negligence or intentional acts of distortion, mutilation, other modification and/or destruction of Mr. Brancaccio's sculptures under the laws of the United States, Title 17, United States Code § 106A; for breach of contract under the common law of the Commonwealth of Massachusetts; and for grossly negligent or negligent acts resulting in injury or loss of property under Mass. Gen. Laws ch. 258 § 2.

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The Parties 2. Ralph Brancaccio is an artist of recognized stature residing part of the year at 15

Donnel Road, Vernon, CT 06066. 3. Upon information and belief the Defendant is a municipality in the

Commonwealth of Massachusetts and with a usual place of business located at 795 Massachusetts Avenue, Cambridge, Middlesex County, 02139.

Jurisdiction and Venue 4. This action arises under the Visual Artists Rights Act (VARA) codified within

the Copyright Act, 17 U.S.C. §§ 101 et seq. and specifically § 106A, the common law of the state of Massachusetts and Mass. Gen. Laws ch. 258 § 2. 5. 6. 1367. 7. Venue is proper within this judicial district pursuant to 28 U.S.C. § 1391(b). The Court has original jurisdiction over this action pursuant to 15 U.S.C. § 1121. The Court has supplemental jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338 and

Background 8. In 2008, Mr. Brancaccio received and accepted a grant from the Cambridge Arts

Council (CAC), an agency of the City of Cambridge, for a non-profit public art installation titled “The Y Project.” The aim of The “Y” Project was to promote a greater understanding of social issues through temporary placement of sculptures in public spaces in the form of the letter “Y” to inspire contemplation on social issues and cultivation of positive change. Four sculptures, titled “Y Think,” “Y Discriminate,” “Y AIDS,” and “Y Care,” were placed in locations around the City

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of Cambridge. Prior to installation in Cambridge, The Y Project was installed in New York and Providence, RI. 9. Although the grant letter proposed to have the exhibition completed by December

2008, Mr. Brancaccio and CAC agreed to have the sculptures exhibited until April 2009. The City of Cambridge adopted a resolution providing for the outdoor exhibition of The Y Project until April 2009. In the resolution, the members of the Cambridge City Council expressed “their appreciation to Ralph Brancaccio for bringing The Y Project to Cambridge.” 10. Mr. Brancaccio worked with staff members of the CAC and representatives of

Office of the Mayor to install the sculptures in end of June of 2008. On at least one occasion, the CAC expressed its desire to “work with [Mr. Brancaccio] to make this project as successful as possible.” Representatives from the Office of the Mayor worked with Mr. Brancaccio to create outreach opportunities and generally expressed support for the Y Project. 11. A press release by the CAC was issued in July of 2008 and The Y Project was

additionally publicized in local media including the Boston Globe, the Cambridge Chronicle, on the Wicked Local website and on the city of Cambridge and Cambridge Arts Council website. The project was publicized as extending through April 2009. 12. The Y Project was generally regarded by the CAC as a success. On at least one

occasion, the CAC expressed “that the project has received a great deal of attention” and that project had created “a very successful situation in getting folks to think about the situation of others, their own individual predicament and role and responsibilities within the neighborhood and broader community.” 13. In September 2008, a representative from the CAC requested immediate de-

installation of The Y Project prior to the pre-agreed and publicized date of April 2009. In

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response to the request from the CAC, Mr. Brancaccio immediately started inquiring as to the potential removal and storage of the sculptures. To alleviate the storage costs, Mr. Brancaccio contacted various organizations in Cambridge, Boston, New Jersey and Connecticut to find an alternative location for the temporary display of the sculptures. 14. In October 2008, due to continuing project related community events and

activities, the CAC agreed to postpone de-installation until completion of the community events. Meanwhile Mr. Brancaccio continued to look for suitable storage or placement of the sculptures. 15. In December 2008, the CAC requested that the sculptures be quickly removed

before the pre-agreed date. Mr. Brancaccio continually communicated with CAC regarding deinstallation and finally was able to arrange de-installation, scheduled for December 17, 2008. 16. Mr. Brancaccio cancelled a scheduled trip to India for the month of December for

an artist residency program and exhibition and instead continued to negotiate with the CAC regarding removal of the sculptures. On December 16, 2008, in an in-person meeting, Mr. Brancaccio reached an agreement with the CAC for early de-installation of the sculptures at the end of March 2009. The March de-installation date was confirmed in various communications with the CAC including email and in the end of the year report. Relying on statements by the CAC at this meeting, Mr. Brancaccio cancelled the arranged removal and storage of the sculptures on December 17, 2008. 17. Receiving no other correspondence from the CAC regarding de-installation, Mr.

Brancaccio continued to believe that the sculptures were to be removed at the end of March 2009. Unknown Mr. Brancaccio, employees of the City of Cambridge removed the sculptures sometime between January 10, 2009 and March 5, 2009 and in so doing caused extensive damage to the

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sculptures. Ralph was away from the state On March 6, 2009, Mr. Brancaccio found the sculptures to be missing from their designated locations. 18. In response to numerous inquiries, Mr. Brancaccio was finally informed on or

about March 16, 2009 by the CAC that the sculptures were located in a gated and secure cityowned site. On or about March 20, 2009, Mr. Brancaccio received an email the CAC reporting on the damage to the sculptures. On or about March 22, 2009, Mr. Brancaccio located the sculptures thrown in a heap under the Alewife Highway Underpass. 19. In inspecting the sculptures, Mr. Brancaccio discovered that the sculptures were

extensively damaged or destroyed. The overall damage was such that it appeared that in removing the sculptures they were not treated as artwork. Mr. Brancaccio found that the sculptures were carelessly thrown together, laying on their sides, rather than carefully placed in a standing position. 20. Mr. Brancaccio observed that the sculptures were tossed among construction

materials and what appeared to be debris from construction sites. Mr. Brancaccio observed multiple dents and scratches on the body of all four of the sculptures. On a few of the sculptures, Mr. Brancaccio observed deep gashes, approximately 1/8 inch or 1/16 inch deep on the body of the sculptures. The lettering on some of the sculptures was bent or nicked, marred, and/or deformed. One of the sculptures was destroyed by being broken off its base-plate. The bolts attaching the base plate to the body of that sculpture were bent, potentially indicating that someone attempted to pry the sculpture from the base; the base itself was bent. The scratches and dents to the top of the sculpture may also indicate that the sculptures were dragged causing additional damage.

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21.

In assessing the damage, Mr. Brancaccio determined that at least one the

sculptures would need to be re-fabricated due to the extensive damage and all four of the sculptures would need extensive repair including new base plate covers. The repairs would need to be completed prior to the next installation in Provincetown, MA, scheduled for early April, 2009. 22. Immediately after the discovery of the damage, Mr. Brancaccio attempted to work

with the CAC to obtain cooperation in repairing the sculptures for the installation in Provincetown. To no avail, a number of representatives from the Mayor’s Office attempted to set up meetings between with the CAC and Mr. Brancaccio to help facilitate repairs. On April 14, 2009, he was instructed to submit a damage claim explaining various attempts to resolve the dispute and an expense total. 23. As a result of the damages Mr. Brancaccio was not able to meet his contractual

obligations under the agreement with Provincetown. The Y project was installed in Provincetown on May 21, 2009, almost two months after the initially agreed to installation date. 24. The Solicitor’s Office delayed processing the claim and negotiations continued and

on January 19, 2010 the Solicitor’s Office finally offered Mr. Brancaccio an answer to the submitted claim equalinga small fraction of the total expenses incurred. COUNT I (Mutilation or Destruction Under Federal Law) 25. above. 26. This is a claim for modification, alteration, mutilation, distortion, and/or Mr. Brancaccio re-alleges the allegations contained in each of the paragraphs

destruction of sculptures part of The Y Project, under VARA §106A (a)(3). The Y Project

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incorporated four sculptures designed and created by Mr. Brancaccio as the result of receiving a grant from the CAC of the City of Cambridge. Mr. Brancaccio is the author of the sculptures, and he has at all times owned, and continues to own, all of the moral rights to the sculptures. Every aspect of The Y Project included a number of choices of features and elements which make the resulting expression original and creative containing the sufficient amount of original and creative authorship to result in a copyrightable work. 27. Mr. Brancaccio became aware of the removal of the sculptures on March 6, 2009

and became aware of some of the damage to the sculptures on March 20, 2009. A full inspection was conducted on March 23, 2009 in which extensive damage was observed. 28. In removing the sculptures, without Mr. Brancaccio’s permission or authority, the

employees of the City of Cambridge had extensively damaged the sculptures and had caused intentional modification, alteration or mutilation of the sculptures. The damage to the sculptures was such that it demonstrates that the modification, alteration or mutilation was intentional. As the result of the intentional mutilation of the sculptures Mr. Brancaccio had to repair the sculptures and was unable to meet several commitments including attending an artist residency program, as well as not being able to meet his contractual obligations under an agreement with Provincetown, MA which was prejudicial to his honor and reputation and is a violation of Mr. Brancaccio’s rights under VARA. 29. Each of the four sculptures constitutes a work of fine art of recognized stature

because sculptures are viewed as meritorious and are so recognized by the CAC, the general press and members of the art community. By removing the sculptures, without authorization from Mr. Brancaccio, employees of the City of Cambridge had extensively damaged the sculptures and as

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the result had caused intentional or grossly negligent destruction of the sculptures. The damage to the sculptures was such that it demonstrates the severe lack of care taken in the removal of these sculptures which amounted to either gross negligence or intentional destruction in violation of VARA. COUNT II (Injury or Loss of Property Under State Law) 30. above. 31. This is a claim for injury or loss of property, the sculptures, under Mass. Gen. Mr. Brancaccio re-alleges the allegations contained in each of the paragraphs

Laws ch. 258 § 2 caused by the negligent or wrongful act of any public employee. During the removal of the Y Project by employees of the City of Cambridge, which occurred without authorization or supervision from Mr. Brancaccio, the City of Cambridge acted in such a negligent or grossly negligent manner as to cause extensive damage to the sculptures. The damage was so extensive that it shows so slight a degree of care exercised by the employees of the City of Cambridge as to justify the belief that there was an indifference to the sculptures. 32. On April 14, 2009, Mr. Brancaccio made a claim under M.G.L.A. ch. 258, § 4 and

on January 19, 2010 received a final denial in the form of an answer. COUNT III (Breach of Contract Under State Law) 33. above. 34. On March 20, 2008 Mr. Brancaccio received a letter from the CAC of the City of Mr. Brancaccio re-alleges the allegations contained in each of the paragraphs

Cambridge indicating receipt of a grant for The Y Project.

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35. 2008. 36.

Mr. Brancaccio accepted the terms of the award in writing on or about April 8,

The grant letter indicated that the project must be completed by December 31,

2008 and indicated that changes to the project must be in writing, and must be approved and agreed upon by the CAC. Mr. Brancaccio, through a series of emails, requested from the CAC to have The Y Project completed by April 2009 and the CAC agreed. In line with the agreement, the City of Cambridge adapted a resolution indicating that the project was to be completed by April 2009. 37. The CAC attempted to modify the agreement by requesting to have The Y Project

de-installed prior to the April 2009 agreed upon date. On or about December 16, 2008 Mr. Brancaccio in good faith negotiated with the CAC to remove The Y Project in late March 2009 prior to the April 2009 date. Relying on statements by the CAC at this meeting, Mr. Brancaccio immediately cancelled the arranged removal of the sculptures, scheduled for December 17, 2008. 38. Mr. Brancaccio has performed all of the conditions, covenants and promises

required by him to be performed in accordance with the terms and conditions of the grant agreement, by installing The Y Project and performing the series of talks requested by the CAC. 39. Without Mr. Brancaccio’ permission or authority, sometime between January of

2009 and March 5, 2009, The Y Project was removed from the designated locations. The employees of the City of Cambridge extensively damaged the sculptures in The Y Project. 40. The City of Cambridge, breached their agreement with Mr. Brancaccio by

removing The Y Project prior to the agreed upon date and causing extensive damage to The Y Project.
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41.

As a result of the breach of the City of Cambridge, Mr. Brancaccio incurred costs

and expenses associated with repairing The Y Project, and placing the installation of The Y Project at the next exhibition location in Provincetown, MA behind schedule. In addition, Mr. Brancaccio was unable to meet several commitments including attending an artist residency program, as well as not being able to meet his contractual obligations under an agreement with Provincetown, MA. Relief Sought WHEREFORE, Mr. Brancaccio asks this Court to: A. Find Defendants liable and award to Mr. Brancaccio such actual and statutory

damages that are available to him in an amount to be fixed by the Court in its discretion as just, pursuant to VARA and the Copyright Act. B. Find Defendants liable and award to Mr. Brancaccio such damages that are

available to him in an amount to be fixed by the Court in its discretion as just, pursuant to breach of contractual obligations. C. Find Defendants liable and award to Mr. Brancaccio such damages that are

available to him in an amount to be fixed by the Court in its discretion as just, pursuant to Mass. Gen. Laws ch. 258. D. Award to Mr. Brancaccio his attorneys' fees and all of Mr. Brancaccio’s costs and

expenses of litigation. E. Grant to Mr. Brancaccio such other and further relief as the Court may deem just,

proper, and equitable under the circumstances.

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Jury Demand Mr. Brancaccio demands a trial by jury on all issues so triable.

Respectfully submitted, /s/ Ralph G. Brancaccio 15 Donnel Rd, Vernon, CT 06066

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