Dances with Bison: Kevin Costner Goes to Court

As my regular readers know I do not often write about legal matters on this blog, despite the law being my chosen profession.  However I wanted to bring your attention to an interesting case currently working its way through the court system, involving a famous Hollywood star and a sculptor from whom he commissioned a large work of art.  It allows us the opportunity to think about art in a legal context, and more specifically about what you, as the owner of a work of art, have the right to do with the piece you have purchased, as well as the rights and obligations of both artist and patron.

We begin with a little background about the case. After the experience and financial success of “Dances With Wolves”, Kevin Costner planned to build a large casino-resort complex in the Black Hills of South Dakota, and commissioned artist Peggy Detmers to create a bronze sculpture group of American Indians hunting a herd of bison for the site. Detmers delivered the sculptures, but the development deal fell apart and the sculptures were placed at another site owned by Costner. The artist sued for breach of contract, alleging among other matters that the sculptures were never placed where they were supposed to have been placed.  The case is now on appeal to the Supreme Court of South Dakota.

In any contract there are always issues, sometimes foreseeable and sometimes not, which may have an impact on the performance of the parties’ respective duties under the terms of the contract.  In a hypothetical contract where Abel agrees to sell Baker a crate of oranges at wholesale, because Baker wants to sell them in his corner grocery store, but Baker’s shop is subsequently struck by lightning and burns down after the agreement but before the delivery, then the terms of the contract can have a tremendous impact on what happens next.  It may be that the court finds frustration of purpose or impossibility, excusing Baker from paying Abel, or it may be that even though his store was destroyed, Baker is found to still be obligated to pay for the oranges he ordered.

I am not a contract attorney, nor am I familiar with the terms of the contract between Costner and Detmer.  Therefore, I am not going to pretend that I understand all of the issues currently before the South Dakota Supreme Court.  Nor would I rely entirely on news reports to understand the arguments or defenses on either side. When it comes to reporting on complicated legal matters, the so-called mainstream media generally understands about as much about contract law as they do about Catholicism – which is demonstrably very little.

That being said, one of the interesting topics raised by this case is the question of how much control an artist has over the work they deliver to their patron.  We are not talking here about intellectual property, such as copyrights and trademarks, a subject which often comes up in cases involving music or writing.  In contracts involving unique, commissioned products such as a building or a work of art, there may be serious restrictions on what the purchasing party is allowed to do with that product under the terms of the contract between him and the creative party.

For example, architect Frank Lloyd Wright was often as notoriously controlling of his clients in his professional life, as he was of his family in his private life.  Not only would he design a house for a client, but oftentimes he also designed all of the interior furnishings, from chairs to light fixtures, and occasionally even articles of clothing that he expected the client to wear when they were in the house.  He would insist that the furniture be placed exactly where he himself believed it should be placed, and there are stories of him creating contractual obligations to this effect, or going into a client’s home to re-position the furniture, if the client dared to alter his arrangement.

Architect Antoni Gaudí, a slightly older contemporary of Wright, often did the same thing; because his style was so unusual and in many ways impractical, it would lead to colossal headaches on the part of the homeowner. In the case of his Casa Milà, more famously known as “La Pedrera”, the wealthy widow who had commissioned the building finally grew so incensed over the skyrocketing building costs, the fines from the city because the structure was not up to code, and the lack of any flat walls or angles in the building, that she refused to pay any further cost overruns. Gaudí sued her for breach of contract and in 1915 he eventually won, donating the damages he was awarded to charity. However the end result was that his patroness refused to order any furnishings from him, meaning this was one of the few projects by him which did not have its own custom-designed interiors.

In the case of the sculptural group commissioned by Costner, I suspect the case will turn on whether by actively participating in the placement of the sculptures at the alternate site, Detmers waived any rights she might otherwise have to pursue damages for breach of contract. Costner’s lawyers certainly seem to be arguing that this is the case, although under generally accepted principles of contract law both Costner and Demters may have the affirmative duty to try to mitigate their respective damages, when there is a possibility of breach of contract, and it could be that Detmers was simply doing her duty under the law or under the terms of the contract. Had neither Costner nor Detmers done anything in anticipation of the alleged breach, the case might be clearer one way or the other.

One of the potential dangers in commissioning a building or a work of art is the collapse of the contractual relationship between the person doing the creating and the person doing the commissioning. When you are purchasing a painting or a home second-hand, and the artist or architect has been dead for 150 years, then there are not going to be such problems, of course, but at the same time if there are no new commissions, then there are no new buildings or art pieces for us to enjoy. While the struggle between artist and patron is nothing new, both sides should keep in mind that without a great deal of discussion beforehand about the goals and expectations of each party, these types of contractual arrangements can lead to needless, endless litigation – something that is good for my profession, of course, but perhaps not so good for everyone else.


Kevin Costner with some of the sculptures by Peggy Detmers
Tatanka, South Dakota

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