Councillor Meyper, see? Good morning. May I please the Court, Paul, quite on behalf of Appellance, Simon Sheffan, and Greg Jones. I would like to reserve three minutes for Rebellion. Just watch the clock, yes. Thank you, Your Honor. The instant litigation implicates important policy considerations regarding the protection of artists' creations under the visual artist's right track of 1990. But credibly in the lower court, this case and the trial was turned into an issue over an old school bus. One of the materials that was obviously used in the creation of Law and Tessa, and whether or not that vehicle was abandoned by the artist. It isn't a threshold issue under the VARA, and that is, is this applied art or not? Absolutely
. And that's where the trial court aired and the primary issue related today. The- And what was the error? The error was that the trial court found it to be applied art, the application of art to a utilitarian object. However, the problem here is that the finished product, Law and Tessa, was no longer a utilitarian object to be used on the daily basis. It was used to transport people around burning. That was a minor component of the actual art piece itself, and where the trial court relied on finding that it, because it transported people, it retained its use as a utilitarian object. Let me ask first, do you have any objection to the legal standard that the trial court used as opposed to the application of the standard? No. I believe it's the application of the standard as to what is and is not applied art that is really the question here and where the court aired in not distinguishing the art piece itself from a component of the art piece. Well, so you agree that whatever this thing, so as to be neutral, this thing has you utilitarian purpose? No
. It doesn't have any utilitarian purpose. No. It is a whimsical art piece that one of the- Well, it may be a sports people. One- That would be- it doesn't- it's not taking people from point A to point B. As a school bus would where it picks up the students at point A, takes them to school. In the setting of Burning Man and in the presentation of the art piece, the transportation was a mere component of the entire art that was created. A new art form, if you will, mobile, interactive art form that was at the time of its creation in 2002 on the cutting edge. In fact, it's grown into an art form that adorns the streets of San Francisco
. These kinetic art pieces, these interactive art pieces that may have a certain element of utilitarian nature, but that's not the nature of the art piece itself. So is it floated to Roseville Parade and the work of applied art? That is a more difficult question because it's- I guess if you're looking at it from the perspective of its transporting participants in the parade from point A to point B, it could be considered applied art. But I would argue under the Visual Artists Rights Act that it would not be applied art, it's part of the whimsy, it's part of the creation itself that is what defines art, the fantasy that it creates, and the fact that it moves and you can participate and be part of that art form is something new and amazing in the art world. So you're saying it's like an art installation but a mobile art installation? And this Court, I'm sure, has seen those art installations coming to a from Burning Man on the Embarcadero and other locations. They ten years ago we would have never imagined to see those art installations where people can actually interact with them and be part of them. It's become an international phenomenon of these type of art installations that are more than just going to the State Museum and looking at the picture. So the fact is that people can get in this object bus and go places, right? Yes, can I say it does have a utilitarian application art? No. And why not? Because you can enter an art piece, because an art piece moves does not refer to it to a utilitarian purpose of transporting people from point A to point B
. Well, that's a, you know, it can have some other utilitarian purpose. Why do you focus that it must transport from A to B to B utilitarian? Well, that's what the point of a bus is. That's a school bus, right? It takes people from point A to point B. There's no creativity involved in a school bus. There's- Let's assume, for example, that Locke and Tessa was used as a school bus. It certainly could have been. It could have transported students around, right? Well, let's assume hypothetically. Does that change then the nature of the art? If it were to take students, it would take children on a treasure hunt
. Yeah, exactly. But that's part of the whimsy of it. But no, let's say that we think this is really fun. We're going to use instead of our usual school bus. We're going to use Locke and Tessa to pick up kids going to school. Well, and that's an interesting distinction in one that this Court dealt with just recently under the Fabrica line of cases, which is slightly different in application. But in inhale versus star buzz, the Court, this Court in July made a determination of whether or not the utilitarian purpose could be removed from the artistic form. And in this case, the artistic form overwhelmed the utilitarian purpose of transporting people
. So even if you were to say, if you used a progressive school district, say here in this city, decided we're going to use this as a school bus and move it along, does that mean it's applied art? Yes, that's my question. And my, I would submit that that is an issue that the Court's trial court improperly decided related to and denied its artistic merit. So now are you saying that it's in the, that it's a legal question and application you're saying it's a factual question? Well, in inhale versus star buzz, this Court found that it was a mixed question of law and fact. And of course, this Court reviews this determination to know, though, whether or not the jury should be left to decide this mixed issue of law and fact is something for this Court to make a determination of. But the Court, the bus didn't, wasn't actually moving, but instead it was used as a venue. And that's an interesting issue because in certain aspects, it was being used in its static condition to create the feeling of being on the ocean. Of venue, a stage prop, it was not. And that you have to look at the brutality of the experience that the art piece created and the intensity of feeling that it created and why it was a piece that was internationally recognized, why it appeared in Rolling Stone
. Set-stone, stage sets, theater sets, even concert sets don't appear in depictions of Rolling Stone or Stern or other international magazines. They're not on the Discovery Channel. This piece was. Well, there's a lot of these pirate ships, for example, that have been used in the movies. They appear on all kinds of channels. Well, I can't see whether you're in Rolling Stone would actually be a very good dividing line for deciding if something were applied art. Well, the issue is whether or not it, whether it's art, and that's a question. We know it when we see it
. And that's where I would ask this Court to go in finding that this, in fact, was art not a stage, not a utilitarian object because of the feelings, the response that it created, the creations, the flabbery by reproducing Locke and Tessa in later years, in other kinetic mobile art forms. Councillor, I assume, since we've conducted this discussion that you agree that the applied art definition is the one we take from the Carter case in the Second Circuit? Yes. And it's not separately identified in the statute, as I understand it. That is correct. And applied art as not being defined, this Court has to adopt a standard as to what that actually means. And I would ask this Court to consider those items that were excluded under Vara, their commercial purposes, if you will, and read those exclusions as a whole in looking at what the definition of applied art should be. And when you look at that, that's when the artist commissions the work or is hired to create the banner like in Polaria, where they basically put some artistic creativity on a commercial banner or an item that's to be used for another purpose as opposed to creating an art piece that turns into a fine art because of its very nature. Your Attellee is to look at section A, Little I, any poster map, Globe chart, Technical Drawing Diagram model, applied art, motion picture, et cetera? Exactly
. Commercial purposes. If you look at the overarching coverage of Vara and what it was intended to protect, and the example that was utilized by Congress in adopting Vara, the artist who produced these sculptures for the 1964 World Sphere, who's art was bought by the very producers of the World Sphere and then turned into scrap metal. And that's why Vara was passed to take these, to protect these creations from their destruction because of the perspective of the person that's destroying or acquiring that art piece as is the case here. Counsel, you're down to listen three minutes. Your choice. I will hold off and say it for a bottle very long. Good morning, Your Honor. Keegan Low, appearing for the appellee, Michael Stewart
. Would you mind pulling your microphone a little closer? Very good. Thank you. Your Honor, block and test like some people simply can't avoid its humble origins. It was a school bus that transported people and it was adorned to look like a Spanish galleon. But contrary to what we heard today, the mobility of this art piece was key to its existence. It was made to be on the playa ad burning man because of the flat surface. It had a very short draft at the bottom or draw. The attempt to buy the appellance in this case is to elevate the stature of this art car into fine art. And the fallacy of that argument is they seem to think that if it's fine art and it's recognized and it's, it has a lot of accolades that it then cannot be applied art. And that's the problem here. The jury trial in this case was two weeks of showing how much work went into building this galleon, which nobody disputed. But you can't get away from the original basis for this project. And in your analogy, you're saying that the original basis is the bus? Yes, Your Honor. But leave aside their argument because there's a lot of bad fine art. So you don't have to be popular to be fine art. But just because you take the teletary object and incorporate it as part of art doesn't somehow mean that it's always going to be applied art, doesn't it? Well, there are some close questions
. And the fallacy of that argument is they seem to think that if it's fine art and it's recognized and it's, it has a lot of accolades that it then cannot be applied art. And that's the problem here. The jury trial in this case was two weeks of showing how much work went into building this galleon, which nobody disputed. But you can't get away from the original basis for this project. And in your analogy, you're saying that the original basis is the bus? Yes, Your Honor. But leave aside their argument because there's a lot of bad fine art. So you don't have to be popular to be fine art. But just because you take the teletary object and incorporate it as part of art doesn't somehow mean that it's always going to be applied art, doesn't it? Well, there are some close questions. If you had a scenario where you no longer utilize the functioning part of it, in this case, the school bus, as a school bus, if it was just driven out and planted in the desert, I think that might be a closer question. Okay, so I take that this is a teletary object, right? The glass? Right. Okay, so I take it now and I paint it. And then I put some interesting little things inside plastic, loose-like ice cubes. And then I set it on a shelf. I could drink out of it still, but it's actually art. How do I know if it's a flight art or not a flight art? Well, it retains its function as a drinking glass, just as a school bus retained its function to transport people. So your dividing line was that if there's any functionality retained, it becomes a flight art? Well, yes, but also more specifically, if the functionality is key to the art project itself, and in this case, I don't think there's any doubt that this was a key component of the Spanish galleon ship
. If you had a scenario where you no longer utilize the functioning part of it, in this case, the school bus, as a school bus, if it was just driven out and planted in the desert, I think that might be a closer question. Okay, so I take that this is a teletary object, right? The glass? Right. Okay, so I take it now and I paint it. And then I put some interesting little things inside plastic, loose-like ice cubes. And then I set it on a shelf. I could drink out of it still, but it's actually art. How do I know if it's a flight art or not a flight art? Well, it retains its function as a drinking glass, just as a school bus retained its function to transport people. So your dividing line was that if there's any functionality retained, it becomes a flight art? Well, yes, but also more specifically, if the functionality is key to the art project itself, and in this case, I don't think there's any doubt that this was a key component of the Spanish galleon ship. Would you mean he affected it, moved or the fact that it was a bus? The fact that it moved was the element of this art piece, and again, understanding Burning Man, it's a big, expansive, flat ground, and so these art cars and lock and test are very popular up there. But the move in, do I understand transported people as well? Was that? Oh, yes. It had a bus driver who was at the front of the ship, who drove it around the playa. The term is not separately defined in the statute. We've been looking at the Carter case, help us with the definition. Where do we go for the definition? I think that your honor, I think, that the definition is in as best as I've seen, is in the Carter versus Helensley spear case, and I can't quote it right now, but essentially what it is, is a dormant of a utilitarian object, and they give a great example, I think, of you can, if you paint a chair and hang it on the wall as a painting, that is, that can obtain the protection of Barra. But if you paint a chair, just paint a chair and sit it on the side of the room, that is not covered by Barra. That was an example
. Would you mean he affected it, moved or the fact that it was a bus? The fact that it moved was the element of this art piece, and again, understanding Burning Man, it's a big, expansive, flat ground, and so these art cars and lock and test are very popular up there. But the move in, do I understand transported people as well? Was that? Oh, yes. It had a bus driver who was at the front of the ship, who drove it around the playa. The term is not separately defined in the statute. We've been looking at the Carter case, help us with the definition. Where do we go for the definition? I think that your honor, I think, that the definition is in as best as I've seen, is in the Carter versus Helensley spear case, and I can't quote it right now, but essentially what it is, is a dormant of a utilitarian object, and they give a great example, I think, of you can, if you paint a chair and hang it on the wall as a painting, that is, that can obtain the protection of Barra. But if you paint a chair, just paint a chair and sit it on the side of the room, that is not covered by Barra. That was an example. Well, that's the colloquy with Judge McEwan, where the glass with a chair. Right. And, well, I mean, I think that that's the purpose, and then the Polara versus Seymour case, the reasoning behind this is that Barra was enacted as a very limited statute, and it was not meant to cover a wide variety of art objects, which is why the exclusions are as extensive as they were. Well, now, what about Mr. Quade's argument just made that you have to look at the context of the statute, and I read some of the context, Postor Map, Globe, Chart, so forth. He suggests that tells us, has to have a commercial purpose. Does this have a commercial purpose? Well, there were some claims that it was going to, at some point, generate revenue as an attraction, but I would submit that for the purposes of its tenure at Burning Man, it didn't have a commercial purpose that I was aware of. But I don't think that you'll find any authority that says that the Barra protections are only or do not exist only for commercial projects
. Well, that's the colloquy with Judge McEwan, where the glass with a chair. Right. And, well, I mean, I think that that's the purpose, and then the Polara versus Seymour case, the reasoning behind this is that Barra was enacted as a very limited statute, and it was not meant to cover a wide variety of art objects, which is why the exclusions are as extensive as they were. Well, now, what about Mr. Quade's argument just made that you have to look at the context of the statute, and I read some of the context, Postor Map, Globe, Chart, so forth. He suggests that tells us, has to have a commercial purpose. Does this have a commercial purpose? Well, there were some claims that it was going to, at some point, generate revenue as an attraction, but I would submit that for the purposes of its tenure at Burning Man, it didn't have a commercial purpose that I was aware of. But I don't think that you'll find any authority that says that the Barra protections are only or do not exist only for commercial projects. And what about cannons of construction? Do they help us in anywhere here? Well, I don't know where you're going with that, Your Honor, but I'm just testing the water. Okay. So, what about the water definition? And all we have is a second-circuit case, and I don't know where they pulled it out of the ear. Well, that's true, Your Honor. I mean, it's clear that there's a positive authority in this area, but the authority that is there, the two cases that we have in the briefs, I think, make clear that if it's utilitarian and it doesn't lose that utilitarian purpose, the protections of Barra protection, I do not apply because it is, in fact, applied art. I would note for the record that counsel mentioned a couple of times a case that, apparently, was recent. I don't think it's in the briefs. I'm unfamiliar with the case, Starbuzz case
. And what about cannons of construction? Do they help us in anywhere here? Well, I don't know where you're going with that, Your Honor, but I'm just testing the water. Okay. So, what about the water definition? And all we have is a second-circuit case, and I don't know where they pulled it out of the ear. Well, that's true, Your Honor. I mean, it's clear that there's a positive authority in this area, but the authority that is there, the two cases that we have in the briefs, I think, make clear that if it's utilitarian and it doesn't lose that utilitarian purpose, the protections of Barra protection, I do not apply because it is, in fact, applied art. I would note for the record that counsel mentioned a couple of times a case that, apparently, was recent. I don't think it's in the briefs. I'm unfamiliar with the case, Starbuzz case. And one last point I'd like to make, Your Honor, is think this through. If Barra protection was given to Lockentessa, then it likely would be sought for any owner of any art car in the United States, and there's a lot of them, because they're all going to say this art car is fine art, and it deserves the protection of Barra. So the next time that car, which in art cars for the most part are driven on the street, they're legal to drive. The next time that car gets in an accident, instead of a State Court negligence claim, you're going to have potentially a Federal component to simple negligence cases. And I think- The next things like crying fouls for every most possibility, there's a real different point in art car that's driven around on the streets, and at least what's alleged here, which is a mobile art installation, which is not typically driven on the streets. I don't think it's the same thing. Your analogy would hold. Well, I think I don't see the difference if I own an art car as opposed to, if you don't have an art car
. And one last point I'd like to make, Your Honor, is think this through. If Barra protection was given to Lockentessa, then it likely would be sought for any owner of any art car in the United States, and there's a lot of them, because they're all going to say this art car is fine art, and it deserves the protection of Barra. So the next time that car, which in art cars for the most part are driven on the street, they're legal to drive. The next time that car gets in an accident, instead of a State Court negligence claim, you're going to have potentially a Federal component to simple negligence cases. And I think- The next things like crying fouls for every most possibility, there's a real different point in art car that's driven around on the streets, and at least what's alleged here, which is a mobile art installation, which is not typically driven on the streets. I don't think it's the same thing. Your analogy would hold. Well, I think I don't see the difference if I own an art car as opposed to, if you don't have an art car. What is it? Well, they say that it's not an art car as you, I think, are using the term, but that it's basically an art installation. It's a creative art installation that's over a bus. So then the question comes up. Is that really something that- is there- is there enough factual issue here that the jury should at least be instructed on functionality and let them decide? Since you brought up that point, I don't know if this is a question that you have, but the judge McQuade, the magistrate judge, and Reno, he found that he could decide as a matter of law whether something was or was not applied art. And he cited to some other cases in his decision that seemed to also have, as a matter of law, the judge determining whether this was applied or not. So he couldn't define it, but he knew it when he saw it. Well, perhaps. Perhaps
. What is it? Well, they say that it's not an art car as you, I think, are using the term, but that it's basically an art installation. It's a creative art installation that's over a bus. So then the question comes up. Is that really something that- is there- is there enough factual issue here that the jury should at least be instructed on functionality and let them decide? Since you brought up that point, I don't know if this is a question that you have, but the judge McQuade, the magistrate judge, and Reno, he found that he could decide as a matter of law whether something was or was not applied art. And he cited to some other cases in his decision that seemed to also have, as a matter of law, the judge determining whether this was applied or not. So he couldn't define it, but he knew it when he saw it. Well, perhaps. Perhaps. Your Honor, unless you have further questions, I'll submit it this time. Thank you, counsel. Mr. Quade, you have some reserve time. Just briefly, going to the issue and the argument raised in this matter related to the art car, it's a far cry from a negligence claim of an artist who voluntarily puts his art on the public roadways and is involved in an accident. From the facts of this case, where an individual, a Pelley Michael Stewart, willfully destroy a piece of art without making any attempt to contact the artist or to preserve the art piece. In fact, in looking at Vara, your 17 U.S
. Your Honor, unless you have further questions, I'll submit it this time. Thank you, counsel. Mr. Quade, you have some reserve time. Just briefly, going to the issue and the argument raised in this matter related to the art car, it's a far cry from a negligence claim of an artist who voluntarily puts his art on the public roadways and is involved in an accident. From the facts of this case, where an individual, a Pelley Michael Stewart, willfully destroy a piece of art without making any attempt to contact the artist or to preserve the art piece. In fact, in looking at Vara, your 17 U.S. C. 13, I believe it's D. If the art is in a building, the building owners must contact the artist or give them notice that it's going to be removed or destroyed, going back to the Carter Hensley case, and whether or not those deserve the protections of Vara. And in that setting, the building owner must take steps to notify the artist of their intent to remove and or destroy, appropriate the artist's work, even in the context of paying that artist to make that installation in the hallways and on the elevators of that utilitarian object, the building. So if looking at it in that light, even applied art in a building setting, a utilitarian object enjoys the protection of Vara because of the distinguished, distinguished swing factor of the utilitarian object itself and the art piece itself. That's why I would respectfully ask this Court, and it makes me, I would say, cringe when I hear it referred to as a bus because no one that viewed law can test that would have thought it was a bus, no one. Now, one single person actually went out there and sought or participated in that art piece would have said it was a bus. I also like to point out actually Stewart's own expert, Gary Carson, his testimony, would you consider David Best Art Car as fine art? And you may have heard of David Best's very famous artist here
. Yes, definitely. Why? Because he's famous. That was his distinguishing factor, not that it was applied art versus fine art. But he said in his own testimony that art car can be fine art, and we ask that you find that today. All right. Thank you, Council. The time has expired. The case just argued will be submitted for decision