United States District Court, C.D. Illinois, Peoria Division
JANEAN BAIRD, LIANNA BANKORD, ERIN BURNISON, ELIZABETH BERAN, BRENT GOKEN, DICK GOKEN, RALSTON SCOTT JONES, ED MADISON, BRAD MOSBY, LIZBETH OGIELA-SCHECK, BLAIR VALENTINE NATALIE WETZEL, and SAVANNAH WETZEL, Plaintiffs,
TOWN OF NORMAL and BUSH DEVELOPMENT, LLC, Defendants.
OPINION & ORDER
BILLY McDADE, UNITED STATES SENIOR DISTRICT JUDGE
matter is before the Court on Defendants' Motion for
Summary Judgment (Doc. 38). Plaintiffs have filed a Response
(Doc. 40) and Defendants have filed a Reply (Doc. 41). This
matter is therefore ripe for review. For the following
reasons, Defendant's Motion is granted in part and denied
& Procedural Background
are artists who contributed to a mural on a building located
at 104 E. Beauford, Normal, Illinois. Defendant Town of
Normal owns the building and plans to demolish it as part of
a development project. Defendant Town of Normal contracted
Defendant Bush Development, LLC, to carry out the development
project including the demolition of 104 E. Beauford.
question underlying this lawsuit is what happens to the
mural. Defendant Town of Normal has considered destroying it
or relocating it. (Docs. 40 at 6, 41 at 1- 2). Plaintiffs
commenced the lawsuit under the impression, they state, that
destruction was Defendant Town of Normal's preferred
option. (Doc. 40 at 4). Defendant Town of Normal stated in a
January 2019 report it “would not seek to move the
mural unless the demolition of the mural would subject the
Town to unacceptable liability or unnecessary delay”
and its officers made other similar statements. (Doc. 40 at
6-7). Plaintiffs therefore sought a temporary restraining
order to prevent the destruction of the mural. (Doc. 9).
Court held a hearing on that motion in May 2019. At that
hearing, an attorney for Defendant Town of Normal represented
it “will not be demolishing the mural” but rather
“will be moving the mural.” (Doc. 22 at 12).
Additionally, the Court was informed the demolition of the
building had been “tentatively planned for sometime in
July” 2019. (Doc. 22 at 14). Finally, Defendant Town of
Normal stated, through its attorney, that it planned to
temporarily store the mural after removal while receiving
proposals for its future. (Doc. 22 at 20).
Court continued the hearing sua sponte and then
granted an agreed motion to further continue the hearing.
However, upon receiving a second motion to continue the
hearing, the Court denied Plaintiffs' motion for a
temporary restraining order, determining the timeline
indicated a temporary restraining order was not proper at
that point but also allowing Plaintiffs to submit a motion
for a preliminary injunction within a week of an ordered
settlement conference. (Doc. 27 at 3-4). As it transpired,
this deadline became July 1, 2019. (Minute Entry on
6/14/2019). Plaintiffs did not request a preliminary
injunction. Defendants have not yet demolished 104 E.
Beauford. In their present filings, Defendants state the
demolition “will not occur until spring of 2020 at the
earliest.” (Doc. 38 at 2).
are suing under the Visual Artists Rights Act of 1990 (VARA),
17 U.S.C. § 106A. As relevant here, VARA “provides
a measure of protection for a limited set of moral
rights” to artists, Kelley v. Chicago Park
District, 635 F.3d 290, 298 (7th Cir. 2011), including
the right “to prevent any intentional distortion . . .
which would be prejudicial to [the artist's] honor or
reputation” and the right “to prevent any
destruction of a work of recognized stature, ” 17
U.S.C. § 106A(a)(3)(A-B). However, modification of a
work of visual art resulting from “the public
presentation, including lighting and placement, of the work
is not a destruction, distortion, mutilation, or other
modification . . . unless the modification is caused by gross
negligence.” 17 U.S.C. § 106A(c)(2).
section, providing an exception where a work is part of a
building, has also been argued to bear on the instant case.
See 17 U.S.C. § 113(d). Section 113(d) provides
that if a work of visual art has been incorporated into a
building such that destruction of the building would cause a
harm to the artwork cognizable under § 106A(a)(3) the
artist may waive their rights in writing. 17 U.S.C. §
113(d)(1). Moreover, if a work incorporated into a building
can be removed without causing a cognizable harm under §
106A(a)(3), the artists' rights do not apply if
“the owner has made a diligent, good faith attempt
without success to notify the author . . . [or] the owner did
provide such notice in writing and the person so notified
failed, within 90 days after receiving such notice, either to
remove the work or to pay for its removal.” 17 U.S.C.
Rule of Civil Procedure 56 provides for summary judgment
where there is no genuine dispute of material fact and the
movant is entitled to judgment as a matter of law. “The
nonmovant bears the burden of demonstrating that such genuine
issue of material fact exists.” Aregood v. Givaudan
Flavors Corp., 904 F.3d 475, 482 (7th Cir. 2018). A
“genuine dispute of material fact” is one which
would allow a reasonable jury to find in favor of the
nonmoving party. Skiba v. Ill. Cent. R.R. Co., 884
F.3d 708, 717 (7th Cir. 2018). Assertions that a fact is
genuinely disputed or cannot be genuinely disputed must be
supported by citations to evidence in the record. Horton
v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018).
record is viewed and all reasonable inferences drawn in favor
of the nonmovant. BRC Rubber & Plastics, Inc. v.
Cont'l Carbon Co., 900 F.3d 529, 536 (7th Cir.
2018). However, inferences “supported by only
speculation or conjecture will not defeat a summary judgment
motion.” Carmody v. Bd. of Trs. of U. of Ill.,
893 F.3d 397, 401 (7th Cir. 2018). The Court may not
“make credibility determinations or weigh evidence on a
motion for summary judgment” but it must nonetheless
“decide what inferences can be justifiably be
drawn from the nonmovant's evidence.” Zaya v.
Sood, 836 F.3d 800, 806 n.1 (7th Cir. 2016). In sum, the
Court's role is limited to determining whether the