Simon Cheffins v. Michael Stewart
825 F.3d 588
9th Cir.2016Background
- Plaintiffs Cheffins and Jones converted a used school bus into "La Contessa," a 16th-century galleon replica used at Burning Man (rides, performances, weddings).
- La Contessa was stored on private land; after ownership changed to Stewart, he left it on his property and ultimately burned its wooden superstructure in December 2006 to recover the underlying bus.
- Plaintiffs sued in Nevada federal court asserting VARA (moral rights) and conversion; the magistrate judge granted summary judgment to Stewart on the VARA claim as "applied art," and the conversion claim proceeded to trial where the jury ruled for Stewart.
- The district court excluded certain plaintiff expert testimony, admitted evidence of surrounding drug paraphernalia, declined several plaintiff jury instructions, and denied partial summary judgment on conversion (trial rendered that denial unreviewable).
- The trial court awarded attorneys’ fees to Stewart under Nevada offer-of-judgment law after plaintiffs rejected Stewart’s offer; plaintiffs appealed VARA ruling, evidentiary and instructional rulings, and the fees award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VARA protects La Contessa or whether it is "applied art" excluded from VARA | La Contessa is a sculpture/visual art entitled to VARA protection | La Contessa began as a utilitarian bus and continued to serve utilitarian functions; thus it is applied art and excluded | Court: an object is "applied art" if it initially served a utilitarian function and continues to do so after artistic alteration; La Contessa is applied art, so VARA claim fails |
| Admissibility and exclusion of plaintiff experts and supplemental reports | Exclusion was erroneous and prejudicial | Trial court acted within discretion finding testimony speculative/unreliable | Court: no abuse of discretion in excluding experts or supplements |
| Jury instructions on abandonment/statutory remedies and damages (including lost profits, punitive) | Plaintiffs sought instructions under Nevada abandoned-vehicle statutes and on lost profits/punitive damages | Court argued statutory scheme applied to public-land vehicle abandonment and damages were speculative; given verdict, no damages award | Court: instructions and refusals proper; statutory instructions inapplicable; any instructional error harmless because jury found for defendant |
| Award of attorneys’ fees based on rejected offer of judgment | Federal Rule 68 timing should control, making the offer untimely and fees improper | Nevada offer-of-judgment rules govern; Rule 54(d) is the federal mechanism to award state-law fees | Court: Nevada offer-of-judgment rules applied in diversity/state-law claim context; award of fees affirmed |
Key Cases Cited
- Carter v. Helmsley-Spear, 71 F.3d 77 (2d Cir. 1995) (defines “applied art” as ornamentation affixed to utilitarian objects and rejects an expansive reading that would swallow VARA protection for installed works)
- Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003) (VARA may protect sculptures that resemble furniture but does not protect purely utilitarian furniture)
- Cort v. St. Paul Fire & Marine Ins. Cos., 311 F.3d 979 (9th Cir. 2002) (describes VARA’s moral-rights protections of integrity and attribution)
- Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004) (trial court has broad discretion in assessing expert testimony reliability)
- MRO Commc’ns, Inc. v. AT&T, 197 F.3d 1276 (9th Cir. 1999) (state offer-of-judgment rules apply to state-law claims in federal court and can support fee awards)
- Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011) (VARA’s definition of "work of visual art" is narrow and focused on listed categories)