IP Law Daily, COPYRIGHT—D. Minn.: Factual disputes over ‘work for hire’ and ‘stature’ push VARA claim to jury, (Jun 5, 2026)

By Matthew Hersh, J.D.

A sculpture park fails to obtain summary judgment over destruction of 53-foot 'Prometheus III'.

A Minneapolis sculpture park that removed and destroyed a piece of artwork by its founder and former CEO will have to face a jury trial over whether its conduct violated a federal statute that protects works of visual art from destruction, the District Court for the District of Minneapolis has held. The court, in denying the sculpture park’s motion for summary judgment, found that the sculptor had tendered enough evidence to show that his sculpture had recognized stature and to fend off a claim that it was made for hire (Hock v. Franconia Sculpture Park, No. 0:24-cv-03546-ECT-EMB (D. Minn. Jun. 2, 2026)).

The lawsuit arises as a dispute between a sculpture park and its original founder. John Hock created the Franconia Sculpture Park in Shafer, Minnesota, in 1995 and began exhibiting artwork there in 1996 in his role as CEO and artistic director. In roughly 2006 he started work on Prometheus III, the third in a series of sculptures named after the mythological Titan who stole fire from the heavens and was punished by Zeus. The sculpture, standing 53 feet tall and weighing around 34,000 pounds, was completed in 2018. By then, however, the relationship between the parties had gone south: the park terminated Hock in September 2018 and the two parties wound up in litigation over the termination shortly thereafter.

Although the employment litigation settled fairly quickly, the dispute over the sculpture did not. In late 2023, the sculpture park hired an auto salvage shop to disassemble and remove the sculpture. The sculptor, miffed, sued the park the next year alleging violations of the Visual Artists Rights Act of 1990, or VARA. The lawsuit also brought state law claims of negligence, breach of contract, theft and conversion, and unjust enrichment. The park, in turn, counterclaimed for breach of contract and for a declaration that it, not the sculptor, owned the work.

The park moved for summary judgment on its declaratory judgment claim and several of the common law claims, leading to this opinion.

Work for hire. The court first found that the sculptor made a plausible claim that the work belonged to him and not to the park. Under VARA, the author of a work of visual art is granted the right “to prevent any intentional or grossly negligent destruction of a work of recognized stature.” However, works made for hire are excluded from the protection of the statute. The park argued that the work was made for hire because the sculptor was working within the scope of his employment at the time he made the work. The court found that a jury would have to decide.

The park was not entitled to summary judgment, the court found, because there was a factual dispute over the scope of the sculptor’s employment. Under common law agency principles, the court noted, an employee’s conduct is within the scope of employment if it (a) is of the kind he is employed to perform, (b) occurs substantially within the authorized time and space limits, and (c) is actuated, at least in part, by a purpose to serve the employee. As to the first prong, the court noted, the sculptor’s job duties at the park were largely administrative or involved mentoring. “These activities do not require creating art,” the court noted. As to the second prong, the court noted, there was evidence in the record that the sculptor created the work on his own time. And as to the third prong, while it was true that the sculptor created the work partly in order to inspire other resident artists at the park, the court noted, he insisted that he also did so to inspire “the world” and “make my most ambitious, monumental sculpture to date.” In any event, even if this element were not met, the court noted, “the factual disputes on the other two elements of the conjunctive test make summary judgment inappropriate here.” The claim would go forward.

Recognized stature. The court also found that there was a legitimate factual dispute over whether the sculpture had a “recognized stature” as required under VARA. Under long-established precedent, the court noted, a work has recognized stature under VARA if it is “of high quality, status, or caliber that has been acknowledged as such by a relevant community.” As such, the court further explained, while the work must have aesthetic merit, “it does not need to attain the highest excellence; "Congress has instead screened out meritless pieces.” Under this standard, the court found, the sculptor presented enough evidence to go to a jury.

Their case could go forward, the court explained, because the sculptor tendered evidence both that the piece had “stature” in its own right and also that this stature had been recognized. As to stature, the court noted, one art collector testified that the work was “pretty monumental” and approached a half-million dollar valuation, while two other sculptors described the work as “a mainstay of the park,” “a major landmark,” and “a monument.” Other artists, the court noted, praised Prometheus III on the sculptor’s Facebook page. Finally, the court noted the work was displayed at Franconia, and “Franconia is the pre-eminent, artist-centered sculpture park in the Midwest.” (This last consideration “only goes so far, however,” the court warned, “because the institution that exhibited Prometheus III later destroyed it, and has taken the legal position that it lacks recognized stature.”) All told, the court concluded, the evidence “creates a factual dispute over the sculpture’s stature.”

And while it was a “closer call,” the court found, there were also enough facts about Prometheus III’s recognition to allow a reasonable jury to find for the sculptor on that element. As noted previously, the court emphasized, one expert testified about his pre-destruction assessment of the work, and he thought the sculpture was “worth a substantial amount of money.” Moreover, a staff writer from the Star Tribune described the work favorably, while a private collector purchased a small-scale preliminary model of Prometheus III for $12,000. Moreover, the court noted, “the fact that Prometheus III was exhibited at Franconia could be evidence that art experts—Franconia’s Board—appreciated its artistic qualities, at least until the parties contracted to remove the piece.” Drawing all justifiable inferences in the sculptor’s favor, the court concluded, “a reasonable jury could conclude that the relevant community of art experts acknowledged the sculpture’s high quality.”

Common law claims. The court also found that a reasonable jury could find in the sculptor’s favor on his common law claims. The central question raised by the sculpture park was whether the sculptor had “abandoned” the work between his departure in 2018 and the work’s destruction in 2023. To be sure, the court noted, the sculptor chose to leave the work on the park’s grounds even though he had promised in 2019, as part of the settlement of the termination lawsuit, to remove it. Nonetheless, the court noted, some facts indicated the absence of relinquishment and intent. For one thing, the court noted, the sculpture was 53 feet tall and 34,000 pounds and therefore “difficult to remove.” Moreover, the court noted, the parties’ settlement agreement set no timeline for removal. “Resolving disputed facts in Mr. Hock’s favor, Franconia did not inform him that it intended to scrap the sculpture,” the court concluded. “A reasonable jury could conclude that Mr. Hock had not abandoned his property interest in the sculpture, so Franconia is not entitled to summary judgment on the state-law claims.”

Expert testimony. But while the sculptor would be permitted to go to the jury on his claims, he would not have the support of expert testimony as to the value of the work. His appraisal expert submitted a report that combined two methods of assessing the sculpture’s fair market value, the court noted—but both would be excluded. As to the sales comparison approach, the court noted, “she did not meaningfully rely on it or show that it was a reliable method under the Federal Rules of Evidence.” As to the cost approach, the court noted, “her opinion inappropriately parrots out-of-court statements to prove the truth of the matter they assert, so it is inadmissible.”

The Case is No. 0:24-cv-03546-ECT-EMB.

Judge: Tostrud, E.

Attorneys: Michael M. Lafeber (Taft Stettinius & Hollister LLP) for John Hock. Grant D. Fairbairn (Fredrikson & Byron, P.A.) for Franconia Sculpture Park.

Cases: Copyright MinnesotaNews