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August 21, 2017


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Steve Lubet

This is a great post.

Patrick S. O'Donnell

I think this is but one in a series of intellectually sophisticated and provocative posts (within their respective fields of research) by Brian (I sometimes see things rather differently than him, owing in part to the fact that I'm far too his Left, politically speaking, important from my end if only because I rarely find anyone so located who has anything intellectually interesting, let alone intellectually stirring, to say).


Interesting argument, but as a practical matter, since the vast majority of confederate monuments were installed before 1920, and apparently made by jobbing Northern foundries (some Confederate soldier's statues were apparently Union soldiers with substituted CSA belt-buckle and badges), it seems likely that an artist or artists descendant possessing the moral rights cannot be found, or is unlikely to assert them.

Brian Frye

Steve & Patrick,

Thank you so much for your kind words! I have always found your respective contributions quite illuminating myself.


I think you are right on the merits with respect to the overwhelming majority of monuments, although as I observe, it is at least possible that one or more are subject to VARA. But even if VARA doesn't actually apply to any of these monuments, I think the potential ought to give us pause about the application of the right of integrity to the location of "site-specific" works. It is one thing to say that works should not be destroyed. It is another thing entirely to say they should never be moved.



@BLF Except that most of the statues and monuments were mass produced by jobbing foundries and are not site specific.

I mean, it's an interesting idea, but the facts are mostly not there.

Brian Frye


Fair point, but I think it depends on the definition & meaning of "site-specific," which in my experience is often stretched according to the circumstances. Confederate monuments are not "site-specific" in the sense that they can physically be moved to a different location. But I don't think that's what most artists mean by "site-specific." Tilted Arc could also be moved - and it was! But Serra argues that the meaning of the work depends on the location in which it was originally installed. Do alternative potential locations that "preserve the meaning" exist? Who knows, I guess you have to ask Serra!

I think Confederate monuments are "site-specific" in much the same way. Their intended meaning depends on their location in a place of civic pride. Sure, they can be moved. But that would change their meaning. For example, Hungarians moved Soviet-era monuments to "Monument Park" outside of Budapest, where they make fun of them. The move was intended to denigrate what the monuments represent & I think it succeeded.

But at the end of the day, I agree that there is no legal claim available for the overwhelming majority of the monuments, even under a "site-specific" claim. But maybe one or two recently erected ones? It's at least possible.



I think site-specific means that the monument was designed for its specific site. Here we are talking (mostly) about mass produced gimcrack, to be stuck without modification in any handy intersection, park or square.

I find this issue a lot with IP, particularly registered designs - you have an idea that in principle is good, but the facts don't line up.

I think it would be a rare and unlikely Confederate memorial that you could make the argument for - perhaps this particularly ghastly one Oerected on the sculptors own private land)


By the way, most of these were created by a jobbing sculptor (for mass production) at a jobbing foundry - the choice of location was from a Wives/Daughters of the Confederacy group - the sculptor had, as far as anyone knows, no idea of the intended location. And since the site specific refers to the artist's creation for a site, knowing near identical copies could be sold anywhere from Armpitsville to Crotchtown, to be stuck in any handy space probably does not meet the artist coming up with a site specific design.

The argument might work better for the plinth - which was probably the work of the local monumental stone-mason (tombstone-maker) - but then put a different statue on it - say Martin Luther King.

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