Judges Decision, The City Appeals
On October 3, 1997, the US District Court, Southern District of Indiana, ruled in my favor, awarding me $20,000.00 in statutory damages and $131,252.00 in attorney fees and costs. I had asked for $100,000.00, which was less than the replacement cost to rebuild the sculpture. Because this was the first case adjudicated successfully under the new law, Judge Sarah Evans Barker ruled that the city's actions were intentional, rather than
willful; based upon the testimony of the individuals involved in the decision to destroy the sculpture who all stated that they were unaware of the law. This placed a limit on the damage award. However, she did allow the maximum amount under a copyright infringement, stating in her decision, . ."we recognize that $20,000 does not compensate Martin fully for the complete
Showing the angle iron pattern I made to set the 1 1/8" threaded rods set into the concrete footers
Cousins Ben and Zach and my sons Bryce and Ian in 1987
Land Exchange Agreement and Closure Meeting
Forward to 1993. The company and Mr. LaFollette settled on an agreement with the city in which his property was to be exchanged for another property, south of the city. Negotiating for the company was my brother, Kim Martin and our corporate lawyer, Mr. Bob Lowe. Knowing that the sculpture might need to be moved, I proposed (through Kim to the city negotiator) that I would like to donate it instead to the city; to keep in in the neighborhood. Also, at the final signing, I reiterated that I wished to make the donation, but requested that the city pay the expenses for moving to a new location, if that should become necessary. I estimated this cost to be approximately $8,000.00. Present at the meeting, besides representative lawyers, were Daniel Kozlowski, Director of Metropolitan Development and Robert Shwier, special council to Mayor Stephen Goldsmith. I was informed that I would be contacted by Mr. Steve Schulmeyer,
At the remonstrance, I also proposed an alternate design for the canal at our location; concealing our building with an ornamental wall with murals and sculptures. I also stated that I was willing to donate my sculpture "Symphony #1" to the city with the hope that it would enhance the community's development. As a result of the remonstrances a vote on approving the city's acquisition plan was put on hold by the chairman, Mr. Wade. Soon afterwards, he resigned under pressure because of a conflict of interest. He was the owner of a construction company that had received contracts from the city.
There is a multitude of information regarding the city's development plans and how it was affecting our business and the neighborhood - too much to cover without writing a book. You may request documents in the Contact section, including my speeches and letters to the Mayor and DMD - for those who are interested in more details.
Variance Proposal Before the DMD
I showed the members of the board the maquette, noting that it had won The 55th Annual Hoosier Salon "Best of Show" in 1980. I presented my art credentials and technical knowledge of metal work. I explained how the sculpture was going to be fabricated and what materials would be used, and concluded by addressing the importance of public art to the community.
Lawyers representing the city opposed the sculpture on the grounds that it might interfere with the city's plans to develop that section of the canal corridor. Immediately following their opposition, the board president asked if I wanted to have the board vote on whether to accept or reject my proposal. Not knowing anyone on the board and concerned that the members would more than likely choose in favor of the city over the
dreams pf a young, unknown artist, I proposed to voluntarily remove the sculpture at my expense if the city bought the property and wanted it removed. Hence, a vote was taken on those terms and passed. Soon afterwards, a legal document was written up and signed by Mr. Lafollette, myself and the director of DMD, solidifying the agreement. Included in the document was the city's requirement to inform me in writing if it wished to have the sculpture removed. The document also allowed me a period of ninety days after written notification to remove the sculpture.
As a side note, two members of the board informed me after the vote that I should not have compromised. They were sure that I could have won without any conditions attached.
Symphony #1 - 1987 - 1995
future plans. This was encouraging; however, Mr. LaFollette thought it would still be prudent to meet with the city planners and see if the sculpture would interfere with their development plans. Though no specific plans were revealed other than those I had already seen, I was advised to present the sculpture project before the Indianapolis Metropolitan Development Commission. Essentially, I was asking the city for permission to build a sculpture on private land that the city did not yet own.
In 1976, after surviving a year of living in a Tribeca warehouse, without heat on the weekends during the coldest winter in forty years; I left New York City and returned to my hometown of Indianapolis to begin working at the family sheet metal fabricating business. During the first five years, I learned the skills of bending, welding and grinding metal, and eventually began to realize that I could utilize this knowledge to create a large scale sculpture. Working from a sketch, I constructed a small scale maquette out of metal, whose design I felt would fit nicely (in full scale) on a vacant plot of land near the business. This property, shaped like the letter V, was bordered on the left side by the old Indiana Water Canal built in the early 1850's. The right leg was edged by a sidewalk running along a local street and was bordered on the opposite side by a row of simple, wood frame houses. The third side was occupied by a red brick church built in the 1920's, known as Bugg's Temple. My cousin, Mr. John LaFollette, owner of the property, as well as the business (The Tarpenning-LaFollette Co., Inc.), and himself an avid supporter of the arts, was pleased to allow me this acre of land to install a sculpture.
Sculpture Proposal and City Plans
We knew that the city was interested in developing the old canal corridor that included Mr. LaFollette's property. Duringthe early 1980's the city planners engaged the architectural firm of Browning, Day, Mullens and Dierdorf, to develop conceptual plans, which when completed, were put on display for the public to view. While visiting that display and studying the designs, I met Mr. Alan Day, principal architect of the firm. I described to him my sculpture and showed him where it would be located. He agreed that the sculpture would be a nice addition to the canal and saw no reason why it could not be incorporated into the
loss of his artwork". She also says . . . "we hope and expect that by awarding attorney's fees to Martin it will serve to deter municipalities and others from wantonly destroying works of art like "Symphony #1" in future development projects".
The city appealed the decision and the case was heard by the 7th District Court of Appeals in Chicago, which voted 2 to 1 to accept the lower court's decision. The argument was decided on August 31, 1999. The case numbers are 98-4041 and 98-4132for the appelate court decision and IP 96-0330-C-B/S for thelower court decision. Both may be accessed on line under Martin vs Indianapolis.
Why I Donated Symphony #1"?
My donation of the sculpture to the city was based upon several factors. First and foremost, the new location of the business would place the sculpture in a location outside public view, for which it was intended. Second, as a thirty year resident of Indianapolis I was inspired by the city's interest in renewing the canal corridor and thought that the gift of the sculpture would be a gesture appreciated as an aesthetic addition to the city. Finally, I sincerely felt that "Symphony #1 would foster interest in promoting the inclusion of fine art in downtown Indianapolis. I had spoken before and written to the DMD and to the Mayor addressing the necessity of including art in their development plans; particularly as they wished to increase the stature of the city as a progressive, cultural center. Their 156 page, IndianapolisRegional Center Plan 1990-2010 (UPP 770) published in 1991, states that among their objectives is to "Improve the quality of life on a day-by-day basis through the use of contemporary public art" and "Assure a dynamic and intelligent city of international reputation through use of the arts."
Sculpture is Demolished
Without being spoken to personally and without ever receiving a written document, the sculpture was destroyed. All of the conditions previously set in the legal documents and reiterated at the final meeting to exchange property were blatantly ignored by the DMD. The order to clear the land for development was approved by the DMD and a call for bids was put out to demolish the sculpture, disdainfully referred to in the order as a "yard ornament".
On the morning of July 25, 1995, I was informed by employees that the sculpture was missing.
Building "Symphony #1"
The next two and one-half years I spent every weekend building the sculpture, entitled "Symphony #1". Besides working a forty hour week in the business, I labored on the sculpture one hour every morning and arrived at 6:00 a.m. every Saturday and Sunday, returning home at 1:00 p.m. I built the large sculpture completely by myself, refusing generous offers of help. When I finished its installation, in 1987, I had accumulated over 1300 hours of labor. Completely fabricated of stainless steel, the sculpture covered an area approximately 20' x 40' and rose over 14' at its tallest point. Each supporting element was welded to a thick steel base plate that was then bolted to a poured concrete, steel reinforced block (4' x 4' x 4') sunk into the ground. Wire rope cables made of 5/8" diameter stainless steel were used to join 1/4" thick floating plates.
The Indianapolis News - "Outdoor sculpture gets preliminary OK from city" - August 16, 1984
The Indianapolis News - "Sculpture will help"- Mark Goff, August 21, 1984
The Indianapolis Star - "Martin orchestrates public site with 'Symphony #1' "- Steve Mannheimer, July 12, 1987
The Indianapolis Star - "Businessman envisions art along canal" - Steve Mannheimer, June 14, 1992
The Indianapolis News - "City may ditch canal project" - Gerry Lanosga, October 22, 1992
The Indianapolis Star - "City turns sculpture into scrap without telling the artist" - Steve Mannheimer, July 27, 1995
Chicago Sun Times - "Court hears case of statues vs statutes" - Jim Kirk, April 10, 1996
The Indianapolis News - "Artist takes on the city" - David Mannweiler, May 21, 1996
New Art Examiner - "Symphony Haul" - Griff Morris, September 1996
The Los Angeles Times -"Razing of artwork frames legal debate"- Judy Pasternak, October 1997
The Indianapolis Star - "Artist wins suit against city over demolished sculpture" - Susan Schramm, October 10, 1997
The Indiana Lawyer - "Judgement that protests artist's rights sets precedent" - Emily Swiatek, November 25, 1997
Chicago Daily Law Bulletin - "Beauty of art-shield law in eye of beholder" - Molly McDonough,November 30, 1998
Art News - "Lost Symphony" - Hugh Eakin, January 1999
The Chicago Tribune - "Artist wins right to his public art" - David Mendell, September 2, 1999
The Indianapolis Star - "City loses appeal on its demolition of artist's work" - Doug Sword, September 4, 1999
The Indianapolis Star - "Indianapolis again plays key role in art law" - Steve Mannheimer, September 12, 1999
ABA Journal - "This 'Symphony' is finished" - Craig D. Feiser, December 1999
Bugg's Temple in the background
Looking For Help - The Legal Path
In mid-August I sent a letter to our corporate lawyer, Mr. Robert Lowe Jr., who represented our company in its negotiations with the city, asking for his advice on whether legal action should be taken against the city. After several letters and phone calls, he responded three months later, suggesting that I propose to the city the reconstruction of another sculpture on city property. He told me that his firm was not interested in taking on the case.
design and fabrication of jewelry pins I had made exclusively for each attendee of the Lieutenant Governor's Conference sponsored in Indianapolis in 1992. Knowing her place in politics, I honored her wish to keep the call anonymous (until now). I was grateful for her compassion.
Property Acquisition Manager at DMD, if the sculpture was to be moved or returned. Mr. Schulmeyer (seated next to me) and I exchanged business cards. The pertinent part of the offer was that demolition was never a consideration and never mentioned. A side note: during my discussion about the sculpture, Mr. Kozlowski entered the room to sign the documents and remarked sarcastically (and I paraphrase) "Oh, are you going back at the last minute on your intention to donate the sculpture?" I took this to mean that he was not happy that I had remonstrated against the city and that I had expressed dismay at his forceful manner in which he debased the concerns of the residents of the canal neighborhood.
Business Expansion, Blight, and Remonstrance
By 1991, the business was expanding and needed more space to operate. Nothing was happening along the canal, so we made the decision to spend $150,000.00 and expand into an adjacent building previously leased by another company. Shortly after completing the move and renovations, my brother Kim and I, were visited by Mr. Brad Hurt, a real estate contractor, hired by the city. His message from the city was that the property had been declared blighted by the Metropolitan Board in 1982 and the city would purchase it under the rule of eminent domain. We had never been informed that the area was blighted. As it turns out, no one else in the neighborhood knew about it either. No one, including other businesses affected, had ever received notice, nor was it ever published in the local newspapers as required by law.
Upon the legal resolution of this case, I contemplated the years of effort I had spent on its creation. I also reflected on the years spent fighting its wanton destruction. The city was allowed to plead ignorance of the law, because this was the first case won by an artist under the recently instituted Visual Artists Rights Act 1990 law. For this reason, there would not be full recompense for the loss of Symphony #1". The sculpture was gone, destroyed in spite of a federal law and in spite of a written agreement with the city. I could only hope that future artists would be spared such attacks. I could hope artists would be fully compensated for any such loss. I could hope that other municipalities and even individuals, who behaved with such willful disregard of this law, would be held responsible and punished financially.
I never received an apology from the city.
Frustration and Informing the Press
Frustrated in my effort to get an explanation for the demolition order, I ended up contacting Steve Mannheimer, who had written the original critique on the sculpture as well as numerous articles in the Indianapolis Star promoting art along the canal. His article on July 27, 1995, stated that Paul Smith, Administrator of the Real Estate Service Division of the city's DMD, told him that we had been contacted and were told that they could do what they wanted with it. Kim Martin, who had taken the call from Mr. William Cobb, project manager for the canal, had been out of the office the morning I learned of the sculptures demise. In error, I had mistakenly informed Mr. Mannheimer that there had been no contact with anyone in our business. However, the phone to my brother did not exempt the city from their responsibility to one: contact me, the creator, builder and owner of the sculpture, two: excuse them for not being explicit in their intention to destroy the sculpture, and three: to follow our agreement that required the communication to be in writing, allowing a ninety day grace period.
On the morning of July 27, I received numerous phone calls from artists and architects expressing their dismay after reading Mannheimer's newpaper article. The very first call came from Mrs. Judy O'Bannon, wife of Governor O"Bannon, a wonderful and devoted advocate for the arts in the state. Speaking to my secretary, she expressed her deep regret for the actions of the city. I had met Mrs. O'Bannon when her husband was Lieutenant Governor of the state. She was very kind in praising me for the
I immediately called several individuals at the DMD who seemed unaware of the situation. Infrustration I ended up calling the president of Jordan Demolition. Mr. Jordon confirmed that he had received a contract from the city to demolish a "yard ornament". He was sorry to say that the sculpture was beyond repair; that they had used a bulldozer to take it down. He also confided in me his disbelief that the large sculpture wasto be scraped. Because of his concern, he called the Indianapolis Museum of Art to see whether they might be interested in taking it. He waited a few days without a return call before proceeding with the demolition.
A little help from my friends
This fact was brought before a court hearing of twelve judges who ruled in the city's favor. Such furor was raised that the Mayor put a hold on the development, but eventually he determined that the development was too important for the city. We, along with other home owners and businesses, remonstrated before the Metropolitan Development Board. We spoke favorably of the development, but expressed our apprehension that the fair market value might not be enough for us to move and stay in business; especially since the property had the blight designation. Also, during our remonstrance, I described our company; how it had been located on the same plot of land since 1920, and was a union contractor, paying its taxes and providing jobs with good wages.
structed to require little maintenance. All of the external welds and sharp edges were manicured to a smooth, consistent finish. It was built to last. "Symphony #1" was favorably reviewed in an article in the Indianapolis Star by critic, Mr. Steve Mannheimer, Associate Professor at The Herron School of Art. He described "Symphony #1" as "a fine piece of public sculpture, thoroughly competent in its design and execution and, more important, a significant human gesture."
Meanwhile, I began to spend time at the city library reading books about the Visual Artists Rights Act, introduced by Senator Edward Kennedy and passed into law by Congress in 1991. One book entitled, "Legal Guide for the Visual Arts" by Tad Crawford, was very helpful explaining the law in laymen terms. On December 4, 1995, I wrote him a letter describing my situation and asking for advice. His response referred me to the Chicago Lawyers for the Arts and a lawyer on call, Mr. Griff Morris. After hearing the general facts regarding the demolition, Mr. Morris felt that there were components that did not fall within the requirements of the law. Thirty minutes later, he called back saying "I've been thinking about what you told me. I think you might have a case after all!". He requested that I send him more specific information and supporting documents, which I did. A few weeks later, he called to tell me that he had discussed my case with Mr. Scott Hodes, a lawyer in Chicago who specialized in representing artists, such as Christo. He told me to call Mr. Hodes at Ross & Hardies. After supplying everything I knew to Mr. Hodes, he along with the backing of the principles in his law firm, expressed confidence that I met all of the requirements under the Visual Artists Rights Act. On December 29, 1995, I filed my claim against the city, which was denied: therefore, setting into motion what would result in the landmark legal case under the new VARA law.
*Assisting me throughout the entire case was our company secretary and lawyer, Ms. Jennifer Matthews, who I owe a great deal of gratitude.
With frustration mounting, I contacted four additional law firms in Indianapolis, especially those having experience in cases dealing with intellectual property. In every instance, I was told that there was a conflict of interest due to a relationship with the city. Under the privatization system adopted by Mayor Stephen Goldsmith, law firms were invited to bid on handling all city government cases on a yearly basis. This may explain part of the reluctance.
Stainless steel wire rope and custom designed hooks with internal threads for tightening