IP Law Daily, COPYRIGHT—S.D.N.Y.: Artist’s VARA and state-law claims over destroyed sculpture Gleam dismissed, (Oct 7, 2025)

By Ravindra Kumar Singh, B.L.

The artist failed to allege that her sculpture qualified as a "work of recognized stature," and her other theories did not constitute actionable modification or misattribution under the statute.

The Southern District of New York dismissed a lawsuit brought by New York artist Basia Goszczynska against Arcadia Earth LLC and Informa Markets Fashion (East) LLC, holding that her claims under the Visual Artists Rights Act of 1990 (VARA) failed as a matter of law. The court found that the artist did not adequately plead that her destroyed sculpture, Gleam, was of recognized stature, that the alleged modification and presentation choices were not actionable under VARA, and that reproducing images of her work without attribution did not violate the statute. The court further declined to exercise supplemental jurisdiction over her state-law claims, dismissing them without prejudice (Goszczynska v. Arcadia Earth LLC, No. 1:22-cv-09345-JHR (S.D.N.Y. Sept. 30, 2025)).

Background. Plaintiff Basia Goszczynska, also known as Barbara Fedorowicz, is a New York–based environmental artist who creates sculptures and installations using recycled plastic and other discarded materials. Defendant Arcadia Earth LLC is a Delaware limited liability company that operates immersive exhibitions centered on environmental themes in New York and other cities. Co-defendant Informa Markets Fashion (East) LLC, also a Delaware LLC, produces large trade shows and fashion events.

The relationship between the artist and Arcadia Earth began in 2019 when the company commissioned her to create Rainbow Cave for its Manhattan exhibit space. Over the next several years, she produced multiple editions of the installation, including for the Ithra Museum in Saudi Arabia and Arcadia Earth's Las Vegas venue. The parties' collaboration continued when Arcadia Earth agreed to feature her later work, Gleam, at the September 2022 Coterie Show, an event produced by Informa Markets at the Javits Convention Center in New York City.

Gleam, created in June 2022, was first commissioned by Arcadia Earth for a display at the Marquis Marriott Hotel in Times Square for $50,000. The company later commissioned the same work for the September 2022 Coterie Show at a reduced rate of $25,000. Goszczynska alleged that Arcadia Earth assured her she would have an opportunity to represent herself and her art during the event.

During installation on the morning of September 18, 2022, Goszczynska allegedly discussed her Christian faith and the spiritual meaning of her work with attendees. Arcadia Earth’s founder directed her to stop, later instructing that she be removed from the venue. Javits Center security and local police escorted her out of the exhibition space, after which she claimed that her sculpture was destroyed by convention personnel, allegedly with the defendants’ assistance or consent.

Goszczynska filed her initial complaint in November 2022 and an amended complaint in February 2023, asserting claims under VARA and New York common law. The defendants moved to dismiss.

Jurisdiction. The court found that federal question jurisdiction existed because the VARA claim was not “wholly insubstantial” under Adams v. Suozzi, 433 F.3d 220 (2d Cir. 2005). However, it determined that diversity jurisdiction was not established because Goszczynska failed to allege the citizenship of each defendant LLC member as required by Handelsman v. Bedford Village Associates Ltd. Partnership, 213 F.3d 48 (2d Cir. 2000).

Attribution rights. Goszczynska alleged that Arcadia Earth used images of her work online and in promotional materials without credit. The court rejected this claim because 17 U.S.C. § 106A(c)(3) excludes “any reproduction, depiction, or portrayal” of a work from VARA’s scope. Relying on Oliver v. Meow Wolf, Inc., No. 20-cv-0237, 2023 WL 5002462 (D.N.M. Aug. 3, 2023), the court held that displaying photographs of an artwork on websites or social media does not violate VARA's attribution right. The complaint also failed to allege that Informa Markets engaged in such conduct.

Integrity rights. The plaintiff next contended that the defendants modified Gleam by excluding her from the exhibition and presenting the work in a way that removed its religious meaning. The court held that these actions did not constitute “modification” within the meaning of 17 U.S.C. § 106A(a)(3)(A). Citing Kerson v. Vermont Law School, Inc., 79 F.4th 257 (2d Cir. 2023), and Board of Managers of Soho International Arts Condominium v. City of New York, No. 01 Civ. 1226, 2003 WL 21403333 (S.D.N.Y. June 17, 2003), the court explained that presentation or curatorial decisions are not actionable under VARA unless they involve physical alteration of the work itself. Preventing the artist from personally introducing or contextualizing her work was a matter of exhibition management, not mutilation or distortion.

Destruction. Goszczynska’s central allegation was that defendants destroyed Gleam, a purported work of “recognized stature,” in violation of 17 U.S.C. § 106A(a)(3)(B). The court applied the two-part test established in Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), aff’d in part, rev’d in part, 71 F.3d 77 (2d Cir. 1995), requiring proof that the work possesses stature or artistic merit and that this stature is recognized by experts or the public. Goszczynska’s allegation that Arcadia Earth twice commissioned the piece did not establish its recognized stature. The court cited Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020), and Scott v. Dixon, 309 F. Supp. 2d 395 (E.D.N.Y. 2004), emphasizing that recognition must attach to the specific work, not merely to the artist’s general reputation. Because the complaint contained no factual support for such recognition, the VARA destruction claim failed.

Disposition. Having found all three VARA theories insufficient, the court dismissed the federal claim with prejudice, noting that Goszczynska had already amended her complaint after being notified of its deficiencies and had not requested further amendment. Citing Jiajia Luo v. Sogou, Inc., 465 F. Supp. 3d 393 (S.D.N.Y. 2020), the court stated that defendants are entitled to finality once amendment opportunities are exhausted. The court dismissed the remaining state-law claims without prejudice, permitting Goszczynska to pursue them in state court.

The Case is No. 1:22-cv-09345-JHR.

Judge: Rearden, J.

Attorneys: Kenneth Foard Mccallion (McCallion & Associates LLP) for Basia Goszczynska a/k/a Barbara Fedorowicz. Lucian C. Chen (Mandelbaum Barrett PC) for Arcadia Earth LLC and Informa Markets Fashion (East) LLC.

Companies: Arcadia Earth LLC; Informa Markets Fashion (East) LLC

Cases: Copyright NewYorkNews