Cite as 635 F.3d 290 (7th Cir. 2011)
unless through gross negligence the work is modified, distorted, or destroyed in the process of changing its public presentation.
Second, Phillips’s all-or-nothing approach to site-specific art may be unwarranted. Site-specific art is not necessarily destroyed if moved; modified, yes, but not always utterly destroyed. Moreover, some of VARA’s protections are unaffected by the public-presentation exception. An artist’s right of integrity can be violated in ways that do not implicate the work’s location or manner of public presentation; site-specific art—like any other type of art—can be defaced and damaged in ways that do not relate to its public display. And the public-presentation exception does nothing to limit the right of attribution, which prevents an artist’s name from being misappropriated.
Then there is the matter of the building exception, which applies to works “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.” 17 U.S.C. § 113(d)(1)(A). These works do not get moral-rights protection if the artist: (1) consented to the installation of his work in the building (if pre-VARA); or (2) executed a written acknowledgment that removal of the work may subject it to destruction, distortion, mutilation, or modification (if post-VARA). Id. § 113(d)(1)(B). On its face this exception covers a particular kind of site-specific art. Its presence in the statute suggests that site-specific art is not categorically excluded from VARA.[1]
These observations are of course general and not dispositive. Because we are resolving the VARA claim on other grounds, we need not decide whether VARA is inapplicable to site-specific art.
B. The Park District’s Cross-Appeal on the Contract Claim
The Park District challenges the judgment against it for breach of contract even though damages were assessed at a nominal $1. The district court held that Commissioner Burroughs’s causal remark—“You’re still there, aren’t you? That’s all you need to do.”—created an implied-in-fact contract requiring the Park District to give Kelley reasonable notice before reconfiguring Wildflower Works. Although factual findings about the existence of a contract are reviewed for clear error, ReMapp Int’l Corp. v. Comfort Keyboard Co., 560 F.3d 628, 633 (7th Cit.2009), there is a threshold legal question here about the commissioner’s unilateral authority to bind the Park District to a contract. Our review is de novo. See Manning v. United States, 546 F.3d 430, 432 (7th Cir.2008).
Two statutes guide our analysis. The first is the Chicago Park District Act, which provides in relevant part that “[t]he commissioners of [the Park District] constitute the corporate authorities thereof, and have full power to manage and control all the officers and property of the district, and all parks, driveways, boulevards and parkways maintained by such district or committed to its care and custody.” 70 Ill. Comp. Stat. 1505/7.01. The district court noted the statute’s use of the plural “commissioners” and “authorities” and concluded from this that each individual commissioner was a separate corporate
- ↑ The Park District argued that the building exception applied to Wildflower Works because the garden is located on top of the Monroe Street parking garage and accommodates the air vents that provide ventilation to the garage below. This strikes us as something of a reach. Wildflower Works is not “incorporated into” or “made part of” the parking garage; it is situated on top of it.
