Serra Set Precedent: An Art Law Homage to Richard Serra

April 15, 2024

By Olivia Zinzi

The recent death of an octogenarian titan of 20th century sculpture, Richard Serra (1938-2024), is a fine opportunity to revisit the influential 1987 art law decision which gave wind to the sails of having moral rights integrated into the American legal system. Richard Serra, a celebrated and accomplished American artist, passed away on March 26 at the age of 85.^[1] He graduated with a B.A. in English Literature from University of California, Santa Barbara in 1961 and then earned a B.A. in Art History and M.F.A. from Yale University in 1964.^[2] Serra then spent time in Paris on a Yale fellowship and spent time in Constantin Brancusi’s studio which catalyzed his subsequent foray into sculpture.^[3]

Serra’s grand sculptures evoked ancient temples and other sacred sites, and his spatial distortions and unique curvature produced a mystical viewing effect.^[4] Serra remarked that his work was “viewer centered” and meant to be interpreted by individual reflection, movement, and exploration.^[5]

Serra’s monumental works, both in urban and natural environments, have reimagined ideas of viewership and public interactions with art; however, his works have not done so without facing controversy and legal dispute, such as that caused by his Tilted Arc (1981) sculpture in Manhattan.^[6]

In 1981, Serra based out of New York City, created a steel sculpture on commission for the United States General Services Administration (“GSA”) that was installed in between government buildings in Federal Plaza.^[7] The sculpture leaned slightly to one side and formed a subtle arc and the GSA contracted for the wall of steel to be a permanent installation to the square.^[8] Shortly after its installation, spectators complained that this quickly rusting monstrosity was an “eyesore” and disrupted the space.^[9] Based on the public hearings, panelists claimed that the arc was overbearing and susceptible to graffiti and public urination.^[10]

In response to public criticism and perceived obstruction to the surrounding area, the government removed the work from the federal office complex.^[11] The city’s deinstallation signaled a contentious period in American art history and culminated in a landmark court case, Serra v. U.S. General Services Administration. Government officials claimed the removal was based on the sculpture’s disruption to employees’ and residents’ use of the plaza and not on the work’s aesthetic value.^[12] Serra challenged GSA’s decision to relocate the sculpture and filed a lawsuit for violation of his free speech and due process rights, violation of federal trademark and copyright laws, and state law.^[13]

The District Court ruled that the sculpture’s removal was not a violation of Serra’s free speech and due process rights.^[14] Specifically, the court held that the artist relinquished his free speech rights when he entered into a contract with the government and even if he had retained his First Amendment interest, the sculpture’s removal was in a permissible time, place, and manner.^[15] Additionally, GSA’s procedures were in conformity with due process requirements since Serra was notified and given an opportunity to be heard.^[16] The remainder of Serra’s complaint was dismissed for lack of district court jurisdiction.^[17] The Southern District of New York’s decision granting summary judgment against Serra was appealed and the Second Circuit court affirmed the District Court’s judgment in a 1988 decision.^[18] It is worth noting that this seems to have been Serra’s only brush with litigation and courts.

Serra v. U.S. General Services Admin., set important precedent and has been referenced in many cases including Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996); Comite Pro-Celebracion v. Claypool, 863 F. Supp. 682 (N.D. Ill. 1994); Peltier v. Sacks, No. C17-5209-JCC (W.D. Wash. Aug. 19, 2021); and Grossbaum v. Indianapolis-Marion County Bldg. Auth., 909 F. Supp. 1187 (S.D. Ind. 1995).

Had this case come before the court today (or even a few years later), there would be a much different outcome with a vast rusting arch bifurcating the Plaza in Manhattan. Prior to the enactment of the Visual Artists Rights Act (“VARA”), cases like Serra v. U.S. General Services Administration demonstrated the need for a federal system of moral rights protection for visual art. VARA is the American incorporation of moral rights into its legal texture. Serra filed suit in December 1986, four years before VARA was enacted; his lawsuit effectively preceded and gave impetus for VARA, which protects the works of highly regarded artists.

Despite the tensions with his Tilted Arc installation, Serra continued creating magnificent sculptures. Throughout his illustrious career, Serra was represented by Gagosian and Gagosian has presented over forty solo exhibitions of Serra’s work.^[19] Serra’s sculptures have been celebrated across the globe, with solo exhibitions in Amsterdam, Rotterdam, Paris, Denmark, Madrid, Dusseldorf, Rio de Janeiro, Rome and Naples.^[20] In 2007, the Museum of Modern Art hosted a retrospective titled “Richard Serra Sculpture: Forty Years.”^[21] In 2019, Serra’s works were exhibited at the Gagosian Gallery in Manhattan.^[22] Serra died in his home in Orient, New York and depending on where his will might be probated it can shed light on the artist’s legacy after his death.

VARA’s protections have grown since it was first enacted and continue extending to new sets of artists and artworks, and Serra’s impact on the art and legal community will be seen for years to come. Some of the recent cases involving VARA claims include Cohen v. G&M Realty L.P., and Samuel Kerson v. Vermont Law School, Inc, and these cases would likely not survive in court if it had not been for Serra’s influence on inspiring the enactment of VARA.^[23]

Suggested Articles

• Katie White, Here Are 3 Facts About Richard Serra’s ‘Tilted Arc’—A Sculpture So Controversial It Was Put on Trial, artnet (Apr. 9, 2024), https://news.artnet.com/art-world-archives/richard-serra-tilted-arc-2463230.
• Kriston Capps, The Lost Richard Serra Sculpture That Changed Public Art, Bloomberg (Mar. 31, 2024), https://www.bloomberg.com/news/newsletters/2024-03-31/sculptor-richard-serra-remembered-for-tilted-arc-public-art?embedded-checkout=true.
• H.R.2690 – 101st Congress (1989-1990): Visual Artists Rights Act of 1990, H.R.2690, 101st Cong. (1990), https://www.congress.gov/bill/101st-congress/house-bill/2690.

Suggested Cases

• Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996).
• Comite Pro-Celebracion v. Claypool, 863 F. Supp. 682 (N.D. Ill. 1994)
• Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421, 435 (E.D.N.Y. 2018).
• Grossbaum v. Indianapolis-Marion County Bldg. Auth., 909 F. Supp. 1187 (S.D. Ind. 1995).
• Peltier v. Sacks, No. C17-5209-JCC (W.D. Wash. Aug. 19, 2021).
• Samuel Kerson v. Vermont Law School, Inc., No. 21-2904 (2d. Cir. Aug. 18, 2023).
• Serra v. U.S. General Services Admin., 667 F. Supp. 1042 (S.D.N.Y. 1987).

About the Author

Olivia Zinzi is a Legal Intern at the Center for Art Law. She is a 3L at Northeastern University School of Law and received her BA in government and art history from Georgetown University. She is an Articles Editor for the Northeastern University Law Review and is interested in intellectual property, corporate law and technology.

Select Sources

1. Roberta Smith, Richard Serra, Who Recast Sculpture on a Massive Scale, Dies at 85, New York Times (Mar. 26, 2024), available at https://www.nytimes.com/2024/03/26/arts/richard-serra-dead.html. ↑
2. Guggenheim, Artist Biography: Richard Serra (2024), available at https://www.guggenheim.org/artwork/artist/richard-serra. ↑
3. Id. ↑
4. Roberta Smith, Richard Serra, Who Recast Sculpture on a Massive Scale, Dies at 85, New York Times (Mar. 26, 2024), available at https://www.nytimes.com/2024/03/26/arts/richard-serra-dead.html. ↑
5. Id. ↑
6. Phillip Barcio, Why Was Richard Serra’s Tilted Arc So Controversial?, IdeelArt (May 31, 2019), available at https://www.ideelart.com/magazine/why-was-richard-serra-s-tilted-arc-so-controversial. ↑
7. Id. ↑
8. Id. ↑
9. Phillip Barcio, Why Was Richard Serra’s Tilted Arc So Controversial?, IdeelArt (May 31, 2019), available at https://www.ideelart.com/magazine/why-was-richard-serra-s-tilted-arc-so-controversial. ↑
10. Kathryn Howarth, “Tilted Arc” Hearing, ArtForum (1985), available at https://www.artforum.com/features/tilted-arc-hearing-207391/. ↑
11. Id. ↑
12. Serra v. U.S. General Services Admin., 667 F. Supp. 1042 (S.D.N.Y. 1987). ↑
13. Id. ↑
14. Id. ↑
15. Id. ↑
16. Id. ↑
17. Id. ↑
18. Serra v. U.S. General Services Admin., 847 F.2d 1045 (2d Cir. 1988). ↑
19. Gagosian, Richard Serra: Artist Biography, 2024, available at https://gagosian.com/artists/richard-serra/. ↑
20. Id. ↑
21. Roberta Smith, Richard Serra, Who Recast Sculpture on a Massive Scale, Dies at 85, New York Times (Mar. 26, 2024), available at https://www.nytimes.com/2024/03/26/arts/richard-serra-dead.html. ↑
22. Id. ↑
23. Cohen v. G&M Realty L.P., 320 F. Supp. 3d 421, 435 (E.D.N.Y. 2018) and

    Samuel Kerson v. Vermont Law School, Inc., No. 21-2904 (2d. Cir. Aug. 18, 2023). ↑