“Legs”: Art Law Issues Stand Out in a New Documentary

December 22, 2016

By Adelaide Dunn

In Sag Harbor, NY, a fiery local debate over a prominent artwork, which started in 2008 and still rages on, has led residents to consider exactly what it means to live in a small town with a big personality. Legs: A Big Issue in a Small Town (2015) is a documentary by Sag Harbor-based filmmaking power couple Beatrice Alda and Jennifer Brooke, which tells the heartfelt and amusing story of a giant pair of legs and a multilayered community struggling to define its identity (See trailer: https://vimeo.com/162895102). 

A haven for artists, intellectuals and freethinkers, Sag Harbor is situated at the center of New York’s Hamptons – where a long list of creatives, including Jackson Pollock and Willem de Kooning, have lived and worked. But, as the documentary reveals, the town also has a rich whaling history and toytown vibe that its self-described “natives” strive to preserve.

The sculpture at the heart of the issue is a large pair of legs, created by Larry Rivers (1923-2002). A known provocateur, Rivers “had the audacity to challenge abstract expressionism” by combining figuration with abstraction and parodying the old masters. (Jackson Pollock once tried to run over one of Rivers’ sculptures in East Hampton.) Visitors had to walk through the middle of the Legs to enter Rivers’ studio nearby in the town of Southampton. Some were amused and others annoyed, sowing the early seeds of discord surrounding the Legs.

Ruth Vered and Janet Lehr – a couple of eccentric gallerists – purchased a second iteration of the Legs in 2008 and mounted them to the side of their home, a converted, whitewashed Baptist church. At once quirky, racy and Pop, the sixteen-foot pair of fiberglass Legs are mysteriously androgynous, poised in a carefree prance, and adorned with garter-like stripes. Loved by some and loathed by others, the Legs quickly became an iconic local landmark and the subject of a protracted legal dispute, beginning in 2008 and continuing today.

The Case

Soon after the installation of the Legs, Vered and Lehr’s neighbors complained to the Sag Harbor Zoning Board. The Sag Harbor Village Building Inspector subsequently concluded that they needed a building permit, and the Sag Harbor Village Attorney issued an opinion stating that the Legs were an “accessory structure” in violation of the requirements of the Zoning Code of the Village of Sag Harbor (Applebome). Most notably, the Legs are located a foot from the property line where 35 feet is required (Sag Harbor Online).

After the Building Inspector denied Lehr and Vered’s application for a building permit in 2010, in 2011 they petitioned the Sag Harbor Zoning Board of Appeals to allow them to keep the Legs where they stand. The Board denied their application without prejudice. A string of public hearings followed from 2011 to 2012. Lehr and Vered were supported by dozens of Sag Harbor residents who argued that the Legs are a work of art that should remain, as well as the Larry Rivers Foundation, which produced a petition signed by 400 local residents arguing the same. Neighbors continued to call for the removal of the sculpture (Menu).

In 2012, Lehr and Vered’s attorney argued before the Board that this is a unique case that will not create a detrimental zoning precedent, because Larry Rivers has an important place in the locale’s artistic history, and because the amount of support Lehr and Vered have received indicates that there is serious value to the Legs remaining in their prominent position in the Village. Moreover, the Legs should not be dealt with under the Zoning Code because they are a form of expression protected under the First Amendment. He made the point that other forms of expression, like flag poles and bird baths, are not regulated by the Zoning Code. Further, public health, safety and welfare are not impeded by the sculpture (Sag Harbor Online).

The Board rejected those arguments, holding that the issue of art was a red herring, and that a work of sculpture can still be subject to zoning laws. But the Board nevertheless allowed aesthetics to affect its decisionmaking. It stated that the Legs are an undesirable change in the character of the neighborhood, and their location in the historic district of Sag Harbor is contrary to the Village’s goals of preserving its historic features. Vered called the Board a “bunch of chickens” and appealed the decision (Sag Harbor Online).

In 2015 the New York State Supreme Court in Riverhead upheld the Board’s ruling that the Legs are a structure that is subject to the Zoning Code. The Court dismissed the issue of the Legs’ status as a work of art, reasoning that “what is art?” is a “question philosophers from Plato to Arthur Danto have debated, [which] is best left to their province” (Steindecker). But for now, the Legs remain standing. With characteristic vigor, Lehr and Vered have appealed the New York Supreme Court’s decision and are not removing the Legs until they are forced to do so.

The Film

In preparation for the film, Brooke and Alda interviewed an impressive diversity of Sag Harbor residents and asked for their opinions regarding the Legs. Interviews with artists, musicians, critics, lawyers, sociologists, café owners, local politicians and other residents offer earnest perspectives. For some, the Legs are a reassuring symbol that Sag Harbor has a sense of humor and a creative spirit. Responses range between “live and let live” and “who cares?”. For others, the Legs are an unwelcome punctuation of the town’s quaint, historical aesthetic. Sag Harbor is a town facing significant change, due in part to its popularity as a vacation spot for New York City’s upper crust. To the “native clan”, the preservation of Sag Harbor’s look is a surrogate for the preservation of its “culture” – a concept that is also up for debate. Behind this seems to be an unspoken jibe against whom they see as foreign art snobs and pretentious Manhattanites invading their neat world.

The film’s conversation touches upon three themes common to art lawsuits (each analyzed below): (1) what constitutes art, and who is qualified to make that call? (2) the implications of a community rejecting an artist’s expression, and (3) the tendency of art lawsuits to provide platforms for broader social inquiries and new creative expression. Legs uncovers the universal complexity of social dynamics in small towns and queries how we tolerate our neighbors’ differences. This writer had the pleasure of seeing Legs “in situ”, at Sag Harbor’s Bay Street Theater, as part of the 2016 Hamptons International Film Festival. The colorful cast of talking heads could be seen – and heard – during the screening and the following Q&A with Alda and Brooke.

Art Law Theme #1: What is Art?

In its decision regarding the 2015 appeal, the New York State Supreme Court in Riverhead side-stepped the problematic conundrum of “what is art”, choosing not to behave like art critics. Indeed, this question has preoccupied the contemporary art world since the readymade movement, originating with Marcel Duchamp’s famous urinal and carrying through into noted contemporary oeuvres like those of Jeff Koons and Dan Flavin. Appropriating a readymade consumer object, placing it within an art gallery and elevating it to the sacred status of “art” causes the viewer to question the validity and sincerity of “art” as a concept. This interpretive tension lies beneath a great deal of contemporary art, readymade or other. It is no wonder contemporary art that creeps into courtrooms causes such anxiety. The law depends on stable categories and analogies that enable binary, adversarial approaches to problem solving. Contemporary art, at its very core, aims to resist the notion that there can be a right answer, and that “art” lends itself to a stable definition.

The classification of artworks as everyday objects – the reverse of the readymade – is an occasional conceptual defunct of the law. The decisions of international customs authorities provide two interesting examples that can be compared with the New York State Supreme Court’s decision regarding the Legs.

The first involves the late Dan Flavin. Flavin is celebrated for his vibrant and dramatic assemblages of fluorescent tubes of strip lighting, which have exhibited at noted galleries and museums worldwide. But the European Commission ruled in 2010 that Flavin’s works should be classified for tax purposes as “wall lighting fittings”. This means that any works of the American artist being imported into the EU are liable to full value-added tax, which is 20%. If his works were treated as sculpture, they would only be liable to 5% (Kennedy).

Constantin Brancusi, a key inspiration for Flavin, is coincidentally also a victim of philistine customs rhetoric. When none other than Marcel Duchamp brought a selection of Brancusi’s sculptures, including his iconic Bird in Space, from Paris to New York City in 1926, a customs official (himself an amateur sculptor) refused to call it art (Gayford). To qualify as “sculpture”, works had to be “reproductions by carving or casting, imitations of natural objects, chiefly the human form” (Cleary).

Because Bird in Space was an abstract rendition of the form and motion of a bird, missing representational signifiers like wings and a beak, the work was relegated to the category of “Kitchen Utensils and Hospital Supplies”. For that reason, 40% of the work’s value was levied against it, while qualifying sculptures were free from import taxes. But a thirteen-month appeal, which involved Brancusi testifying as to his painstaking production method, and supporting testimony from Jacob Epstein and Edward Steichen, led to a reversal (Brancusi v. United States). This was the first U.S. court decision recognizing that non-representational sculpture could be considered art (Martin).

As these examples and the case involving the Legs reveal, artists’ unique expressions can be undermined and injustices can occur when challenging artworks are categorized as mere objects.

Art Law Theme #2: the People v. the Artist

Furthermore, it seems democratically significant that the small community of Sag Harbor can advance such a critical voice regarding aesthetics and what is, in the words of one of the film’s interviewees, a “frontal challenge to private property”. It is also significant that those in favor of the Legs’ removal amassed such lobbying power. This is because there is a general assumption in the law that the public benefits from having free access to artworks. For example, according to moral rights rhetoric, artworks present references to history and the contemporary that influence present and future generations. Those references become part of a community’s shared vocabulary (Hansmann & Santilli, 106). And in copyright and First Amendment philosophy, society’s uncensored marketplace of ideas is fed by the public consumption of creative works, no matter the content. A diversity of expression in the marketplace of ideas strengthens democracy, since creative works have political and social implications (Netanel, 159).

But situations like that in Legs allow us to deconstruct these assumptions as out of step with the nature of contemporary art. The famous case involving the removal of Richard Serra’s sculpture Tilted Arc from the Federal Plaza in Manhattan provides a useful analogy. The federal employees and area residents that argued for the removal of the sculpture – a 120 feet long curved steel wall – mainly protested the imposition of an austere and challenging aesthetic on them (Duboff, Burr & Murray, 337). Despite testimony of numerous art world amici, including Keith Haring and Claes Oldenburg, arguing that dismantling a site-specific work is equal to destroying it, the Court ordered the removal of Tilted Arc. Like with the Legs, the Court justified its decision with practical considerations, such as Tilted Arc’s obstruction of police surveillance and attraction of rats (Serra v. United States General Services Admin). The removal was said not to be content-based and not a violation of Serra’s right to freedom of expression.

Both the Legs and Tilted Arc illustrate how, when sculptures with unstable meanings are superimposed onto the adversarial legal system, artificial binaries can shape trial narratives. For Tilted Arc, that binary manifested as the people versus the artist. Similarly, the Legs dispute pitched regular people against the art world.

Legs captures well the contrasting personalities driving the debate. The disgruntled neighbor who lodged the initial complaint with the Zoning Board receives considerable screen time. Poised within her plush heritage home, she labels herself the representative of “the neighbors who have to look at [the Legs] everyday”, calling them an “eyesore”. During the screening, her scathing remarks were met with laughter and lighthearted jeers from the audience.

Vered – unapologetically an art world archetype – makes outspoken and emotive comments about her Legs that anchor the conversational flow. She mentions a tacky blow-up angel decoration in a nearby yard that she and Lehr found “offensive” but managed to tolerate. Citing the U.S. Constitution in her convictions, she opines, “freedom of speech is becoming freedom of hate”. Being somewhat inflammatory by nature, Vered’s response to the dispute was to install floodlights around the Legs that lit them dramatically each night.

One of contemporary art’s virtues is, of course, its resistance to widespread understanding and approval. But some critics have argued that contemporary art has become a collection of abstruse messages accessible only to art world denizens (Meeker, 218). The critic Adam Gopnik writes that contemporary art’s popular audience has been “displaced by a professional constituency” (Gopnik, 141). It is this alienation of regular people from the contemporary art world – accentuated by the legal adversarial system’s narrative binaries – that appears to have exacerbated the disputes behind the Legs and Tilted Arc cases.

Art Law Theme #3: A Platform for Broader Social Inquiries and New Creative Expression

A positive ramification of arts conflicts is that they allow people to play out their anxieties without resorting to violence. This provides a democratic platform upon which to reconcile different values and identities within a community. Stephen Tepper, a sociologist appearing in the film, offered an interesting theory on how democracy enables communities to engage in these “symbolic conflicts”. This leads to “ontological security”, or mental stability resulting from the coherence of one’s social life. Tepper is the author of Not Here, Not Now, Not That! Protest Over Art and Culture in America, which examines some 300 examples of arts conflicts and reaches these conclusions.

Indeed, Brooke and Alda utilized the dispute as a platform for discussing wider social tensions. The implicit hostility felt by different racial groups is shared. The homophobia experienced by a couple of Sag Harbor dads – who until recently were prohibited from being Boy Scout leaders – is told with candidacy and intimacy. Power dynamics between native residents and recent arrivals are told of. Though Legs concludes before the case is fully litigated, the discussion, according to one interviewee, is just as important as the resolution.

The best arts conflicts are those that result in new creative works. Christoph Büchel’s response to the Massachusetts Museum of Contemporary Art’s lawsuit against him was to make new art out of thousands of pages of discovery documents. Mass MoCA was asking the Court for the right to open to the public Büchel’s immense yet unfinished installation, “Training Ground for Democracy”. Büchel and his attorney called the museum’s refusal to give them confidential documents “censorship” (Kennedy).

Brooke and Alda similarly found good documentary fodder in the dispute. They named their goal in the Q&A as giving a “voice to the village”. Based on the heartfelt comments and interjections of Bay Street Theater’s attendees, they clearly succeeded. The filming and screening of the documentary seems to have constituted a catharsis for the community. While legal institutions make attempts at dispute resolution, Legs offers a more therapeutic process, which might be called dispute relief.

Conclusion

In all, Legs is a rich, meandering conversation that stands as a celebration of the Sag Harbor community’s passions – despite how different those passions can be. Viewers shouldn’t expect the drama and sensationalism that often comes with coverage of artistic debates and free expression matters. Though localized, the themes explored are universal to small towns, such that Legs will strike a chord wherever it screens. It has, in fact, had a successful first run of over 25 festivals, and the next stages of distribution should be just around the corner.

Vered and Lehr’s appeal will be one to watch. Despite the unfavorable decisions from the Zoning Board of Appeals and Supreme Court of New York at Riverhead, an appeal court may well see the situation differently. New York’s courts have in recent years become more adept at importing into their decision-making techniques of artistic analysis, awareness of the art world’s unique business conditions, and acknowledgement of new production techniques in the realm of contemporary art. In such cases, which often involve debates over artistic meaning and merit, the roles of art critic and legal advocate can be intertwined. It is likely that a court will be sympathetic to Lehr and Vered’s position and make a finding that their freedom of expression and private property rights triumph over zoning requirements and neighborhood complaints about aesthetics. More on this as the Legs saga continues.

* * *

From the editors: A special screening of “Legs: A Big Issue in a Small Town” by the Center for Art Law as part of the 2017 “You’ve Been Served” series is planned for the Spring of 2017. Art law topics to be discussed in conjunction with the film will include VARA and NYS zoning laws.

References and Sources

• Beatrice Alda and Jennifer Brooke, Legs: A Big Issue in a Small Town, 2016. Showed at Bay Street Theater, Sag Harbor, NY at the 2016 Hamptons International Film Festival, followed by a Q&A with the directors (October 10, 2016) [primary source].
• Peter Applebome, Legs that Go On and On, but Maybe Not for Long, The New York Times (January 19, 2012) (available at http://www.nytimes.com/2012/01/20/nyregion/legs-sculpture-in-hamptons-village-is-to-be-removed.html).
• MaryKate Cleary, “But is it Art?” Constantin Brancusi vs. the United States, Museum of Modern Art (July 24, 2014) (available at https://www.moma.org/explore/inside_out/2014/07/24/but-is-it-art-constantin-brancusi-vs-the-united-states/).
• Leonard D. DuBoff, Sherri Burr & Michael D. Murray, Art Law: Cases and Materials (Wolters Kluwer Law & Business) (rev. ed, 2010).
• Douglas Feiden, ‘Legs’ the Jumping Point for a New Documentary About Sag Harbor, Sag Harbor Online (December 22, 2015) (available at http://sagharboronline.com/legs-the-jumping-point-for-new-documentary-about-sag-harbor/).
• Martin Gayford, When art itself went on trial, The Telegraph (January 24, 2004) (available at http://www.telegraph.co.uk/culture/art/3610769/When-art-itself-went-on-trial.html).
• Barbara Goldsmith, Art Has Legs, The New York Times (March 23, 2012) (available at http://www.nytimes.com/2012/03/25/opinion/sunday/art-has-legs.html).
• Adam Gopnik, The Death of an Audience, The New Yorker (Oct. 5, 1992), 141.
• Daniel Grant, The Law Against Artists: Public Art Often Loses Out in Court, Observer (September 4, 2014) (available at http://observer.com/2014/09/the-law-against-artists-public-art-often-loses-out-in-court/).
• Henry Hansmann & Marina Santilli “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis” (1997) 26(1) J Legal Stud 95.
• Harry S. Martin III, Is it Art? Harvard Law School (available at http://www.law.harvard.edu/faculty/martin/art_law/whatisart.htm).
• Heather J. Meeker, The Ineluctable Modality of the Visible: Fair Use and Fine Arts in the Post-Modern Era, 10 U. Miami Ent. & Sports L. Rev. 195 (1993).
• Kathryn G. Menu, Judge Sides with Sag Harbor ZBA in “Legs” Case, Sag Harbor Online (November 18, 2015) (available at http://sagharboronline.com/judge-sides-with-sag-harbor-zba-in-legs-case/).
• Neil Weinstock Netanel, Copyright and ‘Market Power’ in the Marketplace of Ideas, Research Paper No. 05-12, University of California, Los Angeles School of Law, Law & Economics Research Paper Series (2015) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=721281).
• Maev Kennedy, Call that art? No, Dan Flavin’s work is just simple light fittings, say EU experts, The Guardian (December 20, 2010) (available at https://www.theguardian.com/artanddesign/2010/dec/20/art-dan-flavin-light-eu).
• Randy Kennedy, Accusations, Depositions: Just More Fodder for Art, The New York Times (March 2, 2008 (available at http://www.nytimes.com/2008/03/02/arts/design/02kenn.html).
• Alisha Steindecker, ‘Legs’ Documentary Explores Division in Sag Harbor, 27 East (February 9, 2016) (available at http://www.27east.com/news/article.cfm/Sag-Harbor/467861/Legs-Documentary-Explores-Division-In-Sag-Harbor).
• Dan Flavin, The Art Story (available at http://www.theartstory.org/artist-flavin-dan.htm).
• Larry Rivers Biography, Larry Rivers Foundation (available at http://www.larryriversfoundation.org/bio.html).
• Legs: A Big Issue in a Small Town, Forever Films, Inc (available at http://foreverfilmsinc.com/).
• “Legs: A Big Issue in a Small Town” Review – Macon Film Festival, Reel GA (July 22, 2016) (available at http://www.reelga.com/2016/07/legs-big-issue-in-small-town-review.html).
• “Legs” Headed Back to Zoning Board, Sag Harbor Online (January 26, 2012) (available at http://sagharboronline.com/legs-headed-back-to-zoning-board/).
• UPDATED: Sag Harbor ZBA stalls “Legs” Decision; Suggests Compromise, Sag Harbor Online (March 21, 2012) (available at http://sagharboronline.com/sag-harbor-zba-stalls-legs-decision-suggests-compromise/).
• UPDATED: Vered and Lehr’s “Legs” Must Walk, Sag Harbor Online (April 18, 2012) (available at http://sagharboronline.com/vered-and-lehrs-legs-must-walk/).
• Serra v. United States General Services Admin., 847 F.2d 1045 (2d Cir. 1988).
• Brancusi v. United States, T.D. 43063, 54 Treas. Dec. 428 (Cust. Ct. 1928).

*About the Author: Adelaide Dunn recently graduated with an LLM in Competition, Innovation and Information Law from the New York University School of Law. Before that, she completed a BA/LLB(Hons) in Art History and Law from The University of Auckland in New Zealand. Adelaide is particularly interested in the intersections of copyright, moral rights and the visual arts. She is currently doing intellectual property, entertainment and commercial law work as a law clerk for a solo practitioner in New York City. Adelaide can be reached at adelaide1dunn@gmail.com.