Judge lets artist’s sculpture destruction lawsuit proceed

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In Brief

• Federal Judge Eric C. Tostrud denied summary judgment, allowing John Hock‘s lawsuit to proceed to trial.
• Hock claims Franconia Sculpture Park violated the Visual Artists Rights Act by dismantling and selling his sculpture, Prometheus III, for scrap.
• The court found factual disputes over whether the sculpture was a work made for hire created within the scope of Hock’s employment.
• The judge ruled a jury must decide whether the sculpture had recognized stature and whether Hock is entitled to actual damages.

An artist whose large sculpture was sold for scrap by his former employer filed a federal lawsuit against that employer. A U.S. district judge in St. Paul recently ruled that the lawsuit will continue.

John Hock is a sculptor who has created pieces in places across the United States and England. In 1995, he co-founded Franconia Sculpture Park, located in Chisago County, and served as its CEO and artistic director. His responsibilities included overseeing operations, managing finances and administrative programs, directing artistic initiatives, and mentoring emerging artists.

Hock began work on the relevant sculpture, “Promethus III,” in 2006. The work was constructed on the park’s grounds during his own time. Although some Franconia employees assisted him on days off, Hock personally paid them and purchased the project’s materials himself. Franconia did not exercise control over the sculpture’s creation and did not assert an ownership interest. The sculpture took about a decade to create. When completed, it was 53-feet tall and 34,000 pounds.

Hock was terminated in 2018. The parties agreed that Hock would remove the artwork from the park “at a mutually agreeable time.” Hock did not contact Franconia about moving the sculpture from 2020 to 2023. He did try to relocate and sell the sculpture, but ultimately, did not move the piece.

Franconia tried to connect with Hock. A board member emailed Hock asking to “connect,” but the message did not mention Prometheus III, any removal deadline, or plans to destroy the sculpture. Although Hock believed he had responded, he mistakenly replied to himself. The parties also dispute whether subsequent phone calls and voicemails occurred.

The sculpture was dismantled and sold for scrap metal. Hock did not learn of the sculpture’s destruction for a few months, even though his property bordered the park, as trees and a hill obstructed his view.

Hock filed this federal lawsuit against Franconia, claiming that it had violated the Visual Artists Rights Act (VARA). Under VARA, work made for hire is defined as a work created by an employee within the scope of employment. These terms are not defined by statute, so courts rely on common-law agency principles to determine whether an employment relationship exists. Hock and Franconia dispute whether the sculpture was a work made for hire. Franconia moved for summary judgment.

While the parties agreed that Hock was employed by Franconia when he created the sculpture, they disputed whether he acted within the scope of his employment. U.S. District Judge Eric C. Tostrud found that there is a genuine factual dispute over whether creating the sculpture was part of the work he was hired to perform, because his duties dealt with matters such as fundraising and mentoring.

Sculpting was also not a duty generally expected from Franconia employees. Hock also personally financed much of the sculpture. Parties disagreed about whether the sculpture was created during authorized work time. Since a jury could reasonably find that Hock acted outside the scope of employment, Tostrud denied summary judgment.

Additionally, the parties disputed whether the sculpture had recognized stature under VARA. VARA does not protect works that lack recognized stature. Tostrud found that the record contains competing evidence on both aesthetic merit and community recognition. Experts and artists described the work as monumental, valuable, and artistically significant. The sculpture’s exhibition at Franconia further suggests acknowledgment by an artistic community.

Although Franconia disputes these interpretations, and Tostrud stated that it was a closer call, he held that credibility and weight of the evidence must be decided by a jury, so he denied summary judgment.

The judge also concluded that Hock can pursue actual damages, not just statutory damages. Distinguishing cases cited by defendants, the court pointed to evidence that the sculpture had market value before its destruction.