“The Trinity Root” by Steve Tobin. Photo by Wally Gobetz/CC/Flickr

The sculptor of “The Trinity Root,” which for a decade sat in the courtyard of Trinity Church in Lower Manhattan as a Sept. 11 memorial to the 100-year-old sycamore that helped shelter St. Paul's Chapel from damage that day, has had his suit over the removal of the work dismissed by U.S. District Judge Lorna Schofield of the Southern District of New York.

Steven Tobin, the Pennsylvania-based artist, initially filed suit in April over the removal of the sculpture from the Trinity Church property in December 2015 to another Trinity-owned location in Connecticut. The case is Tobin v. The Rector, Church-Wardens, and Vestrymen of Trinity Church, 17-cv-02622.

The work is meant to resemble the roots of the sycamore tree and was installed at the church on Sept. 11, 2005, during a public ceremony. The patina of the piece contains, according to Tobin, “actual DNA from victims of the attack that came to rest in soil within St. Paul's
churchyard.” At the time of its instillation, news reports indicated the artwork would exist as a permanent instillation at Trinity.

However, in 2015, the plaintiff was alerted to plans to move the sculpture, because the new rector, Rev. Dr. William Lupfer, considered it ugly, according to Tobin's second amended complaint.

The parties continued discussing what to do with the sculpture. In early December, a representative of the church told Tobin that the desire was for him to either retrieve the more-than-3-ton piece of art, or for it to be moved to a seminary in Connecticut.

Tobin said he considered the options, but called again a few days later to say that ”The Trinity Root” needed to stay where it was as it was a site-specific piece of art. It was then that he was told that the sculpture had already been moved. The artwork suffered damage during that and a subsequent move.

In his suit, Tobin brought, among other claims, three causes of action under the Visual Artists Rights Act of 1990, arguing that Trinity caused injury to his honor and reputation because the removal of the sculpture constituted an intentional “distortion, mutilation and modification.” Tobin also argued for a VARA violation over destruction of the work due to the damage suffered when it moved.

Schofield found that the moving of the sculpture did not, by itself, constitute the kind of defacing or manipulation Tobin claimed under VARA. To do so would require a showing of gross negligence, which, given the facts of the suit, did not occur.

“These allegations are insufficient to plead gross negligence and overcome the public presentation exclusion to a claim based on the relocation of the sculpture,” Schofield wrote.

Damages to the artwork alone does not constitute the kind of “destruction” required for a VARA violation. Schofield said that the very request for an injunction to bring the sculpture back “undermines” the destruction claim because “such relief presupposes that 'The Trinity Root' has not been destroyed.”

Additionally, Tobin alleged promissory estoppel over claims there was a clear and unambiguous promise to keep “The Trinity Root” in the churchyard permanently. But Schofield found that in the agreement between Tobin and Trinity the church was given the right to use the artwork in any manner it chose, and specifically did not promise it would be exhibited publicly, and could loan it out as it deemed appropriate.

In a statement, Trinity spokeswoman Patti Walsh said the church was pleased with the court's decision to dismiss and conclude the matter.

Patterson Belknap Webb & Tyler partner Peter Tomlinson led Trinity's legal defense. Private attorneys Steven Honigman and Gale Elston represented Tobin. Neither could be reached for comment.

“The Trinity Root” by Steve Tobin. Photo by Wally Gobetz/CC/Flickr

The sculptor of “The Trinity Root,” which for a decade sat in the courtyard of Trinity Church in Lower Manhattan as a Sept. 11 memorial to the 100-year-old sycamore that helped shelter St. Paul's Chapel from damage that day, has had his suit over the removal of the work dismissed by U.S. District Judge Lorna Schofield of the Southern District of New York.

Steven Tobin, the Pennsylvania-based artist, initially filed suit in April over the removal of the sculpture from the Trinity Church property in December 2015 to another Trinity-owned location in Connecticut. The case is Tobin v. The Rector, Church-Wardens, and Vestrymen of Trinity Church, 17-cv-02622.

The work is meant to resemble the roots of the sycamore tree and was installed at the church on Sept. 11, 2005, during a public ceremony. The patina of the piece contains, according to Tobin, “actual DNA from victims of the attack that came to rest in soil within St. Paul's
churchyard.” At the time of its instillation, news reports indicated the artwork would exist as a permanent instillation at Trinity.

However, in 2015, the plaintiff was alerted to plans to move the sculpture, because the new rector, Rev. Dr. William Lupfer, considered it ugly, according to Tobin's second amended complaint.

The parties continued discussing what to do with the sculpture. In early December, a representative of the church told Tobin that the desire was for him to either retrieve the more-than-3-ton piece of art, or for it to be moved to a seminary in Connecticut.

Tobin said he considered the options, but called again a few days later to say that ”The Trinity Root” needed to stay where it was as it was a site-specific piece of art. It was then that he was told that the sculpture had already been moved. The artwork suffered damage during that and a subsequent move.

In his suit, Tobin brought, among other claims, three causes of action under the Visual Artists Rights Act of 1990, arguing that Trinity caused injury to his honor and reputation because the removal of the sculpture constituted an intentional “distortion, mutilation and modification.” Tobin also argued for a VARA violation over destruction of the work due to the damage suffered when it moved.

Schofield found that the moving of the sculpture did not, by itself, constitute the kind of defacing or manipulation Tobin claimed under VARA. To do so would require a showing of gross negligence, which, given the facts of the suit, did not occur.

“These allegations are insufficient to plead gross negligence and overcome the public presentation exclusion to a claim based on the relocation of the sculpture,” Schofield wrote.

Damages to the artwork alone does not constitute the kind of “destruction” required for a VARA violation. Schofield said that the very request for an injunction to bring the sculpture back “undermines” the destruction claim because “such relief presupposes that 'The Trinity Root' has not been destroyed.”

Additionally, Tobin alleged promissory estoppel over claims there was a clear and unambiguous promise to keep “The Trinity Root” in the churchyard permanently. But Schofield found that in the agreement between Tobin and Trinity the church was given the right to use the artwork in any manner it chose, and specifically did not promise it would be exhibited publicly, and could loan it out as it deemed appropriate.

In a statement, Trinity spokeswoman Patti Walsh said the church was pleased with the court's decision to dismiss and conclude the matter.

Patterson Belknap Webb & Tyler partner Peter Tomlinson led Trinity's legal defense. Private attorneys Steven Honigman and Gale Elston represented Tobin. Neither could be reached for comment.