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Sculptor sues Fidelity to keep his artistic vision intact

For David Phillips, the commission for Fidelity Investments had all the makings of a career-defining project. The artist, who creates work for public spaces, was paid $575,000 to design a sculpture park outside the offices of Pembroke Real Estate, a Fidelity-owned company on the Boston Waterfront.

Phillips, 59, went to work. He hauled 200 tons of granite from an abandoned quarry in Maine for the project, an installation of stones, paved pathways, and benches on a little more than an acre near Boston's World Trade Center. And when Eastport Park opened in 2000, the company held a catered dedication, at which Phillips got to meet Fidelity's chief executive officer and art collector Edward C. "Ned" Johnson III.

Three years later, Phillips and Fidelity are no longer talking. The company wants to remove the artist's work as part of a redesign of Eastport Park.

Phillips has responded with a lawsuit that, if he wins, will help define a pair of relatively new laws designed to protect artists. US District Court Judge Patti B. Saris has issued a restraining order barring Fidelity from making changes to Eastport Park. She may hand down her decision this week.

"Here we have David's work that he spent 2 1/2 years working on for the park, and now Ned Johnson wants to move it," said Andrew Epstein a lawyer at Barker, Epstein & Loscocco. "That's an affront to David's honor and reputation, and it's not fair."

It's also not allowed, Epstein has argued, under the federal Visual Artists Rights Act and the Massachusetts Art Preservation Act. Both are designed to protect artists from distortion or other changes in their work.

Fidelity said it had never intended to do any of those things. The company wants to add sidewalks and trees for shade, said a Fidelity spokesman, John Brockelman. (Johnson and other employees declined comment.) But when Phillips sued, Fidelity changed its mind. It now wants to cut ties.

"Rather than risk the possibility of being taken to court every time we want to move a bench or do more plantings, our intent is to remove all of his work," Brockelman said.

Phillips, at Epstein's office in downtown Boston, said he had filed his suit reluctantly; he doesn't want to be known as a troublemaker. He prefers to be recognized as the artist whose works dot the area, from sliced boulders outside the Porter Square MBTA station to wrought iron spirals in Quincy Square.

Phillips sought out Epstein because, he said, he felt Fidelity was going to do what it pleased. There are 17 pieces in the park, ranging from a bronze hermit crab to a split boulder. Phillips doesn't want the elements of the park moved or altered dramatically.

Eastport is an important part of his portfolio, he said particularly with developers focusing increasingly on the area. The park is next to the World Trade Center, down the street from Jimmy's Harborside, and not far from the Institute of Contemporary Art's planned new building.

"It's my largest piece in Boston, and it's very upsetting, given that I thought the park was a success," Phillips said. "I heard no unhappiness whatsoever and all of a sudden I get a phone call."

That call, according to his suit, came from a manager at Pembroke Real Estate in 2002, two years after the dedication. The company had planned to move his work to a Fidelity property in Rhode Island, the suit states. After Phillips resisted, he was told that the work would stay in Boston, though some changes would be needed for a park redesign.

Brockelman said the changes would be minimal. Fidelity wanted to make the park more accessible by adding a sidewalk, benches, and more trees. Only one sculpture would be moved, just five feet, Brockelman said.

That's not the impression Phillips got. He said that he remains open to talking with Fidelity about changes, but that it hasn't tried to include him. Phillips said he would consider moving his sculptures, but not to anywhere. The work, he said, is meant to be seen by a diverse set of people, so it shouldn't be in suburbia. It also is meant to be near the water.

The Visual Artists Rights Act was passed soon after the dismantling of Richard Serra's "Tilted Arc." In 1981, the artist was hired by the federal government to create a sculpture in the Federal Plaza in New York City. Some hailed the 120-foot long, 12-foot high steel sculpture as a perfect example of public art. Others said it was ugly, attracted graffiti artists, and should be removed. In 1989, during the night, federal workers sliced it into three pieces and removed it from the plaza.

In 1990, Congress approved the Visual Artists Rights Act, meant to "to prevent any intentional distortion, mutilation, or other modification" of artwork. The law was tested in 1999 when Jan Martin, a sculptor in Indianapolis, sued the city after it bulldozed one of his works. Martin was awarded $20,000 in statutory damages, as well as $130,000 in legal fees. The Massachusetts Art Preservation Act, also named in Phillips's suit, has not been tested, Epstein said.

"A restriction on what you're allowed to do with artwork that you've purchased is a novel concept in American laws," said Daniel Grant, the Amherst author of "The Business of Being an Artist." "People who hadn't heard of it probably wouldn't assume there are these restrictions. They think of art as decoration . . . And half a million dollars isn't probably a big deal for [Fidelity]. But for the artist, it's a huge deal, and he has the protection of the state and federal statute."

Scott Hodes, the Chicago lawyer who handled the Jan Martin case, said there are two keys to the Phillips lawsuit: First, Epstein must show that Phillips is an artist of note with a reputation that could be damaged by the destruction or removal of his work. (Court filings include a list of Phillips commissions dating to 1983.) Second, Epstein must show, through the contract with Fidelity, that he owns the copyright on his work and didn't do it as a "work for hire," a term that, Hodes said, grants Fidelity the authority to do what it wants with the art. (Epstein said that Phillips does retain the rights.)

Hodes said an artist can beat a corporation, no matter how powerful: "I went against the city of Indianapolis and won. If the facts fit the statute, he will win."

Geoff Edgers can be reached at gedgers@globe.com.

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