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Baird v. Town of Normal

United States District Court, C.D. Illinois, Peoria Division

January 15, 2020

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,
v.
TOWN OF NORMAL and BUSH DEVELOPMENT, LLC, Defendants.

          OPINION & ORDER

          JOE BILLY McDADE, UNITED STATES SENIOR DISTRICT JUDGE

         This 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 in part.

         Factual & Procedural Background

         Plaintiffs 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.

         The 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).

         The 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).

         The 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).

         Legal Background

         Plaintiffs 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).

         Another 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. § 113(d)(2).[1]

         Legal Standard

         Federal 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).

         The 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 ...


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