Hock v. Franconia Sculpture Park

Background

John Hock is an artist specializing in sculpture, holding a Bachelor of Arts from Pennington College and a Master of Fine Arts from Syracuse University, with fellowships from several foundations and exhibitions in the United States and England. He co-founded Franconia Sculpture Park in 1995 and served as its CEO/artistic director, a role that included overseeing operations, financial management, and mentoring resident artists. Beginning around 2006 (possibly earlier, with one record indicating 2001), Hock built Prometheus III — a 53-foot, approximately 34,000-pound steel sculpture — on Franconia's grounds, using his own time, largely his own funds (approximately $40,000), a mix of his own and Franconia's tools, and assistants he personally paid. Franconia did not attempt to control the sculpture's creation or claim ownership before litigation. The sculpture was completed in 2018.

Franconia terminated Hock's employment in August 2018. A December 2019 settlement agreement required Hock to remove Prometheus III "at a mutually agreeable time" but set no specific deadline. From 2020 to 2023, Hock did not contact Franconia about the sculpture. In September and October 2023, he reached out to an art collector to find it a new home. Around the same time, Franconia attempted to contact Hock; the parties dispute whether those communications effectively notified him of any intent to act. In December 2023, Franconia had an auto salvage shop disassemble and remove the sculpture, and it was sold for scrap. Hock did not learn of the destruction until February 2024. He filed suit in September 2024.

Claims and Motions

Hock's operative complaint asserts: - Count I: Violation of the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, which protects artists' "moral rights," including the right to prevent intentional destruction of works of "recognized stature." - Count II: Negligence (Minnesota law) - Count III: Breach of contract (Minnesota law) - Count IV: Theft and conversion (Minnesota law) - Count V: Unjust enrichment (Minnesota law)

Franconia answered and brought two counterclaims: (I) breach of contract, and (II) a declaratory judgment that it owned Prometheus III. Franconia moved for partial summary judgment on the VARA claim, the negligence, theft/conversion, and unjust enrichment claims, and its own declaratory judgment counterclaim, but did not seek summary judgment on either breach of contract claim. Franconia also moved to exclude portions of Hock's expert witness, appraiser Rachael Blackburn Cozad.

Summary Judgment Standard

Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). All evidence and inferences are viewed in the non-moving party's favor.

VARA Claim (Count I)

Work Made for Hire

VARA does not protect "works made for hire." Under 17 U.S.C. § 101, a work made for hire includes work "prepared by an employee within the scope of his or her employment." The parties do not dispute that Hock was Franconia's employee when he created Prometheus III. The dispute is whether the sculpture was created within the scope of his employment, analyzed under the three-part test from the Restatement (Second) of Agency § 228:

1. Kind of work: Hock's duties were operational, administrative, and focused on mentoring/inspiring artists — not creating his own art. His 2013 performance review noted personal sculpture as a goal but also included the non-job-related aim of "tak[ing] better care of self." He funded the project himself and used his own tools for key tasks. The court found a genuine factual dispute.

2. Authorized time and space: Construction occurred on Franconia's property during ordinary hours, but Hock testified he built it on his own time. Genuine factual dispute.

3. Purpose to serve employer: Hock testified he made it "for myself" and "to make my most ambitious, monumental sculpture to date," and said inspiring Franconia's resident artists "wasn't the reason." Though his Facebook post mentioned inspiring artists generally, there is a factual dispute, and resolving it in Hock's favor, he did not create it to serve Franconia.

Because each element of the conjunctive scope-of-employment test is genuinely disputed, the court also denied summary judgment on Franconia's declaratory judgment counterclaim, which depended on finding the sculpture was a work made for hire.

Recognized Stature

VARA protects only works of "recognized stature," which the court adopted from the Carter-Castillo standard: a work is of recognized stature when it is of high quality, status, or caliber acknowledged as such by a relevant community (typically art experts, critics, curators, prominent artists). Recognized stature is a question of fact.

The court found genuine factual disputes on both the "stature" and "recognition" elements: - Art collector Laurence Foy testified the work was "pretty monumental," had "obvious artistic value," and could be worth $400,000–$500,000 if Hock "were a little more famous." - Sculptors Andrew MacGuffie and Coral Penelope Lambert described it as "a mainstay of the park," "a major landmark," and "a monument." - Artists praised it on social media. - A Minneapolis Star Tribune staff writer described it favorably. - A maquette (small model) of the sculpture sold to a private collector for $12,000 in 2001. - Prometheus III was exhibited at Franconia, described by Franconia itself in its counterclaim as "the pre-eminent, artist-centered sculpture park in the Midwest." - Hock's own credentials as an award-winning sculptor provided limited but relevant support.

The court noted that Foy, MacGuffie, and Lambert each had firsthand pre-destruction knowledge of the work, so their post-destruction statements were relevant to pre-destruction recognition. Summary judgment on the VARA claim was denied.

Damages

Franconia argued Hock could seek only statutory damages (a fixed amount set by statute), not actual damages. The court disagreed: there was evidence of pre-destruction market value (Foy's testimony that buyers were interested, his letter, and sales of Hock's other sculptures), so Hock may elect either actual or statutory damages.

State-Law Claims (Counts II, IV, V)

Franconia argued that Hock abandoned Prometheus III before its destruction, defeating all state-law claims that require a property interest. Under Minnesota law, abandonment requires both actual relinquishment of the property and intent to permanently part with it.

The court found a genuine factual dispute on abandonment: - In September and October 2023 — just months before the sculpture's destruction — Hock was actively trying to sell or relocate it. - The settlement agreement set no deadline for removal. - The sculpture was 53 feet tall and weighed 34,000 pounds, making removal logistically difficult. - Resolving disputed facts in Hock's favor, Franconia never informed him it intended to destroy the sculpture.

Summary judgment on the negligence, theft/conversion, and unjust enrichment claims was denied.

Expert Witness Motion (Rachael Blackburn Cozad)

Ms. Cozad is an appraiser with over thirty years of experience in the fine arts field, holding degrees in art history and professional appraisal certification (Uniform Standards of Professional Appraisal Practice, or USPAP). She offered opinions on Prometheus III's fair market value and on its "stature" under VARA.

Sales Comparison Approach — Excluded

Ms. Cozad identified only one comparable sale — the Prometheus III maquette — and used a geometric scaling formula (price per square inch, scaled up) to estimate the full sculpture's value at $5,241,873. The court excluded this for two reasons:

1. Unhelpful to the jury (Fed. R. Evid. 702(a)): Cozad did not actually use this figure in her final valuation, acknowledged in deposition that the cost approach was more meaningful, and did not incorporate the sales comparison result. Testimony about it could only mislead the jury with an inflated, unused number.

2. Unreliable method (Fed. R. Evid. 702(c)): The assumption that a sculpture's value increases proportionally with surface area is commonsensically flawed — large works are costly to move, few buyers have space for them, and aesthetic value is unrelated to size. Cozad cited no authority approving the scaling method, did not disclose it as an "extraordinary assumption" as required by USPAP, and Hock did not show USPAP standards approved it.

Cost Approach — Excluded

Cozad consulted two fabricators (Versteeg Art Fabricators, LLC, and UAP Company), who estimated replacement costs of $1,000,000 and $1,250,000, respectively. She adjusted for steel prices, took the midpoint, and added 30% for Hock's time and expertise, arriving at $1,300,000. The court excluded this portion:

- The fabricators' estimates are concededly hearsay. Under Fed. R. Evid. 703, an expert may rely on inadmissible facts if experts in the field reasonably do so, but the proponent may disclose such facts to the jury only if probative value substantially outweighs prejudicial effect. - Cozad's "contribution" was limited to inflation adjustment, finding the midpoint, and adding 30% — basic arithmetic that did not constitute independent expert analysis of the fabricators' conclusions. She essentially "parroted" outside estimates without evaluating them, making her testimony a conduit for inadmissible hearsay rather than an independent expert opinion. - Even if Rule 703 were satisfied, Rule 403 would bar it: the probative value of the arithmetic was substantially outweighed by the danger of prejudice from the jury considering the fabricators' hearsay figures. - The "Accompanying Budget Note" comparing the sculpture to two unrelated public artworks (Keith Sonnier's Double Monopole and R.M. Fischer's Sky Stations) was also excluded because Cozad herself said those works were not comparators, making their valuations irrelevant to Prometheus III's value.

Stature Opinion — Not Excluded

Cozad opined that Prometheus III qualified as a work of "stature" under VARA, citing Hock's career credentials, peer recognition of his broader work, the sculpture's display at Franconia, and public reaction to its destruction. Franconia sought exclusion of everything except the fact of display at Franconia. The court denied that request: other courts have found that an artist's general reputation, past works, and community recognition are relevant to a specific artwork's stature. This portion of Cozad's testimony is admissible.

Order

1. Franconia's Motion for Partial Summary Judgment [ECF No. 117] is DENIED. 2. Franconia's Motion to Exclude Certain Testimony of Plaintiff's Expert Rachael Blackburn Cozad [ECF No. 109] is GRANTED IN PART and DENIED IN PART as described in the opinion.