                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SIMON CHEFFINS and GREGORY               No. 12-16913
JONES,
 Plaintiffs-Counter-Defendants-           D.C. No.
                     Appellants,    3:09-cv-00130-RAM

               v.
                                          OPINION
MICHAEL B. STEWART,
  Defendant-Counter-Plaintiff-
                    Appellee.


     Appeal from the United States District Court
               for the District of Nevada
    Robert A. McQuaid, Magistrate Judge, Presiding

         Argued and Submitted October 8, 2014
               San Francisco, California

                    Filed June 8, 2016

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain and M. Margaret McKeown, Circuit Judges.

             Opinion by Judge O’Scannlain;
            Concurrence by Judge McKeown
2                     CHEFFINS V. STEWART

                           SUMMARY*


                    Visual Artists Rights Act

    The panel affirmed the district court’s judgment in favor
of the defendant in an action under the Visual Artists Rights
Act and Nevada law.

   Plaintiffs transformed a used school bus into La Contessa,
a mobile replica of a 16th-century Spanish galleon for use at
the Burning Man Festival. After the defendant took
possession of the land on which La Contessa was stored, he
burned its wooden structure so that a scrap metal dealer could
remove the underlying school bus from his property.

     Affirming the district court’s summary judgment on the
VARA claim, the panel held that La Contessa was “applied
art” and therefore was not covered by VARA’s protection of
artists’ rights of integrity and attribution in works of visual
art. Agreeing in large part with the Second Circuit’s analysis,
the panel held that an object constitutes a piece of applied
art¯as opposed to a work of visual art¯where the object
initially served a utilitarian function and the object continues
to serve such a function after the artist makes embellishments
to it.

    The panel held that at trial on the plaintiffs’ conversion
claim, the district court did not abuse its discretion in
excluding expert testimony, nor in instructing the jury on
abandoned property, lost profits, and punitive damages. The

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    CHEFFINS V. STEWART                         3

district court also did not abuse its discretion in admitting
evidence of drug paraphernalia surrounding La Contessa as
it sat on the defendant’s property.

    Finally, the panel held that the district court did not err in
awarding attorneys’ fees to the defendant after the plaintiffs
rejected an offer of judgment made under Nevada law.

    Concurring, Judge McKeown expressed concern with the
majority’s definition of applied art. She wrote that the right
question to ask is whether the primary purpose of the work as
a whole is to serve a practical, useful function, and whether
the aesthetic elements are subservient to that utilitarian
purpose.


                          COUNSEL

Paul E. Quade (argued), Quade Law, Ltd., Reno, Nevada,
Plaintiff-Appellants.

Keegan G. Low (argued) and Kristen L. Martini, Robison,
Belaustegui, Sharp & Low, Reno, Nevada, for Defendant-
Appellee.
4                     CHEFFINS V. STEWART

                             OPINION

O’SCANNLAIN, Circuit Judge:

    We must decide whether the Visual Artists Rights Act
applies to a used school bus transformed into a mobile replica
of a 16th-century Spanish galleon.

                                    I

                                   A

     Plaintiffs Simon Cheffins and Gregory Jones, along with
a number of volunteers, built the La Contessa, a replica of a
16th-century Spanish galleon for use at the Burning Man
Festival.1 Cheffins began his creation by acquiring a used
school bus. He and Jones then designed and constructed the
galleon facade, including a hull, decking, masts, and a hand-
crafted figurehead. These elements and the bus were then
transported to the Black Rock Desert in northern Nevada, the
site of Burning Man, and assembled. When completed, the La
Contessa was approximately sixty feet wide and sixteen feet
long with a mast over fifty feet tall.

    The La Contessa first appeared at the Festival in 2002.
Festival participants took rides on the La Contessa, and at
least two weddings were performed on its deck. It reappeared
in 2003 and 2005. In 2003, it was used as part of a marching
band performance, and, in 2005, it was the centerpiece of a
children’s treasure hunt, among other things.



  1
    As Cheffins and Jones helpfully explain, Burning Man is an art and
countercultural festival held each year for the week preceding Labor Day.
                     CHEFFINS V. STEWART                          5

    After the 2002 Festival, Cheffins and Jones stored the La
Contessa on property owned by Festival organizers. After the
2003 and 2005 Festivals, Cheffins and Jones stored the La
Contessa on land in Nevada held in life estate by one Joan
Grant, who had given them permission to do so. In late 2005,
however, Grant’s home burned down, causing her to abandon
the life estate. Thereafter, defendant Michael Stewart took
possession of the land in fee simple through a limited liability
company.

    Cheffins and Jones did not relocate the La Contessa after
the change of property ownership. Rather, it sat unmoved on
Stewart’s land until December 2006. Sometime during that
month, Stewart intentionally burned the wooden structure of
the La Contessa so that a scrap metal dealer could remove the
underlying school bus from his property.

                                 B

     Cheffins and Jones filed this suit in the District of Nevada
in March 2009, alleging that Stewart violated the Visual
Artists Rights Act, 17 U.S.C. § 106(A) (VARA), and
committed common law conversion when he destroyed the La
Contessa. After cross motions for summary judgment,
Magistrate Judge Robert McQuaid dismissed Cheffins and
Jones’s claim under the VARA, concluding that the La
Contessa was “applied art” and so not protected by the
statute.2 Cheffins and Jones’s conversion claim proceeded to
trial before a jury, which found in favor of Stewart, who then
moved for and was granted an award of attorneys’ fees under



  2
    The parties consented to proceed before a magistrate judge under
28 U.S.C. § 636(c).
6                  CHEFFINS V. STEWART

Federal Rule of Civil Procedure 54(d)(2) and Nevada state
law.

                               II

    In this timely filed appeal, Cheffins and Jones contend
that the trial court erred when it granted summary judgment
on their VARA claim and that Stewart was not entitled to
attorneys’ fees. Cheffins and Jones also appeal several
evidentiary rulings, assert that the trial court gave several
deficient jury instructions, and contend that the trial court
erred when it failed to grant summary judgment on their
conversion claim.

                               A

    The VARA was enacted in 1990 as an amendment to the
Copyright Act. 17 U.S.C. § 106A. “The purpose of VARA is
to protect two ‘moral rights’ of artists—the rights of
‘integrity’ and ‘attribution.’” Cort v. St. Paul Fire & Marine
Ins. Cos., 311 F.3d 979, 984–85 (9th Cir. 2002) (citing H.R.
Rep. No. 514, 101st Cong., 2nd Sess. 5 (1990)). “The right of
integrity allows the [artist] to prevent any deforming or
mutilating changes to his work, even after the title in the work
has been transferred.” Id. at 985 (citation omitted and internal
quotation marks omitted) (alteration in original). “The right
of attribution allows the artist to be recognized by name as
the creator of a work.” Id. In order to provide those
protections, the VARA states that “the author of a work of
visual art” shall “have the right,” among other things, to
“prevent any intentional distortion, mutilation, or other
modification of [a] work which would be prejudicial to his or
her honor” and “to prevent any destruction of a work of
                   CHEFFINS V. STEWART                      7

recognized stature, and any intentional or grossly negligent
destruction of that work . . . .” 17 U.S.C. § 106A(a).

    As the text of the statute shows, the VARA only applies
to “works of visual art.” It does not define the term “work of
visual art,” but the VARA is part of the Copyright Act, which
defines “work of visual art” in the affirmative and in the
negative. A “work of visual art” is:

       (1) a painting, drawing, print, or sculpture,
       existing in a single copy, in a limited edition
       of 200 copies or fewer that are signed and
       consecutively numbered by the author, or, in
       the case of a sculpture, in multiple cast,
       carved, or fabricated sculptures of 200 or
       fewer that are consecutively numbered by the
       author and bear the signature or other
       identifying mark of the author; or

       (2) a still photographic image produced for
       exhibition purposes only, existing in a single
       copy that is signed by the author, or in a
       limited edition of 200 copies or fewer that are
       signed and consecutively numbered by the
       author.

17 U.S.C. § 101. On the other hand, a “work of visual art” is
not:

       (A)(i) any poster, map, globe, chart, technical
       drawing, diagram, model, applied art, motion
       picture or other audiovisual work, book,
       magazine, newspaper, periodical, data base,
8                      CHEFFINS V. STEWART

         electronic information service, electronic
         publication, or similar publication;

         (ii) any merchandising item or advertising,
         promotional, descriptive, covering, or
         packaging material or container;

         (iii) any portion or part of any item described
         in clause (i) or (ii).

Id. (emphasis added).

                                    B

    On summary judgment, Stewart asserted, and the trial
court subsequently concluded, that the La Contessa was not
a “work of visual art” because it was “applied art.” Whether
the trial court properly granted summary judgment on the
VARA claim turns on whether the La Contessa was a “work
of visual art.” The parties assert that this question, in turn,
depends on whether it was applied art.3




    3
    Even if the La Contessa were not “applied art” it is not clear that it
would qualify for protection under the VARA. After all, the “VARA’s
definition of work of visual art operates to narrow and focus the statute’s
coverage; only a painting, drawing, print, or sculpture, or an exhibition
photograph will qualify.” Kelley v. Chicago Park Dist., 635 F.3d 290, 300
(7th Cir. 2011) (internal quotation marks omitted). While the trial court
concluded that the La Contessa was a sculpture, we need not further
address the issue because it is not raised on appeal.
                    CHEFFINS V. STEWART                        9

                               III

                               A

    The VARA does not define the term “applied art,” and
federal courts have rarely had occasion to interpret its
meaning. In Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d
Cir. 1995), the Second Circuit held that a sculpture
constructed of portions of a school bus and affixed to a wall
in a building lobby was not “applied art.” Id. at 83. It
explained that the term “applied art” means “two-and three-
dimensional ornamentation or decoration that is affixed to
otherwise utilitarian objects.” Id. at 84–85 (internal quotation
marks omitted). The court further explained that the sculpture
was not “applied art” simply because it was affixed to “the
lobby’s floor, walls, and ceiling” because “[i]nterpreting
applied art to include such works would render meaningless
VARA’s protection for works of visual art installed in
buildings.” Id. at 85.

     The Second Circuit provided an additional gloss on what
constitutes a “work of visual art,” and by extension what
constitutes “applied art,” in Pollara v. Seymour, where it
explained that the “VARA may protect a sculpture that looks
like a piece of furniture, but it does not protect a piece of
utilitarian furniture, whether or not it could arguably be called
a sculpture.” 344 F.3d 265, 269 (2d Cir. 2003). The court
went on to hold that an elaborate painted banner was not a
“work of visual art” eligible for protection under the VARA.
Id. at 271.

   We agree in large part with the Second Circuit’s analysis.
As the Second Circuit suggested, the focus of our inquiry
should be on whether the object in question originally
10                      CHEFFINS V. STEWART

was—and continues to be—utilitarian in nature. Such a focus
comports with dictionary definitions of the term “applied
art.”4 For example, Webster’s Dictionary defines “applied
art” as “employed in the decoration, design or execution of
useful objects.” The Merriam Webster Dictionary 105 (3d ed.
1974) (emphasis added). Similarly, the Oxford English
Dictionary explains that one definition of “applied” is “put to
practical use” and lists “applied arts” as a frequent application
of the term. The Oxford English Dictionary (2d ed. 1989).
These definitions suggest that, in its ordinary meaning,
applied art consists of an object with a utilitarian function that
also has some artistic or aesthetic merit.

     Further, this approach makes sense in the statutory
context in which “applied art” is used in 17 U.S.C. § 101.
“Applied art” is enumerated in a list that also contains, inter
alia, maps, globes, charts, technical drawings, diagrams,
models, newspapers, periodicals, data bases, and electronic
information services. 17 U.S.C. § 101. The fact that the other
items in the list are utilitarian objects leads us to conclude
that the listed items are related by their practical purposes and
utilitarian functions, requiring a focus on utility when
construing the term “applied art.”5


 4
    We adopt the “common practice of consulting dictionary definitions”
to clarify the “ordinary meaning” of terms used in a statute but not defined
therein. Johnson v. Aljian, 490 F.3d 778, 780 (9th Cir. 2007). We consult
“the edition [of the dictionary] in print when Congress enacted” the
VARA. Id.
 5
   Under the canon of noscitur a sociis “statutory terms ‘grouped in a list
should be given related meaning’” and the fact that “‘several items in a list
share an attribute counsels in favor of interpreting the other items as
possessing that attribute as well.’” Rosebrock v. Mathis, 745 F.3d 963, 976
(9th Cir. 2014) (quoting United States v. Kimsey, 668 F.3d 691, 701 (9th
                        CHEFFINS V. STEWART                              11

    We therefore hold that an object constitutes a piece of
“applied art”—as opposed to a “work of visual art”—where
the object initially served a utilitarian function and the object
continues to serve such a function after the artist made
embellishments or alterations to it.6 This test embraces the
circumstances both where a functional object incorporates a
decorative design in its initial formulation, and where a
functional object is decorated after manufacture but continues
to serve a practical purpose. Conversely, “applied art” would
not include a piece of art whose function is purely aesthetic
or a utilitarian object which is so transformed through the
addition of artistic elements that its utilitarian functions cease.

                                     B

    We respond briefly to the concern expressed in the
concurrence that the standard we adopt today may not be
workable—that it raises difficult questions regarding where
exactly the line defining “applied art” will be drawn. See
Concurrence at 22. The analysis we adopt today directs the
court’s attention away from assessments of an object’s artistic
merit and instead toward the object’s practical utility. The
standard is relatively simple: where a functional object,
despite claims of artistic merit, continues to serve a utilitarian


Cir. 2012)); see also Antonin Scalia and Bryan Garner, Reading Law: The
Interpretation of Legal Texts 195–98 (2012) (discussing the noscitur a
sociis canon).
 6
   With recognition that nearly every object on which art is installed will
be in some sense “utilitarian,” we caution that the utilitarian function must
be something other than mere display of the work in question. See also
17 U.S.C. § 101 (“A ‘useful article’ is an article having an intrinsic
utilitarian function that is not merely to portray the appearance of the
article or to convey information.”).
12                      CHEFFINS V. STEWART

purpose, it is applied art. Although the answers to some of
the questions regarding this standard may be clear,7 resolution
of the case before us does not require us to provide a
comprehensive inventory of all the objects that will or will
not meet the definition of “applied art.”

    Indeed, the call for a “more textured and flexible
definition of applied art,” Concurrence at 22, raises even
greater concerns of line drawing. The concurrence would
have judges “evaluate [a] work as a whole,” to determine
“whether the artistic creation is subservient” to its “useful
function.” Id. at 28. Such an analysis necessarily requires
courts to express judgments regarding the importance of an
object’s artistic qualities, and to determine whether those
qualities predominate over the object’s non-artistic utility.
Even approached from the perspective of a “reasonable
observer,” id. at 29, the question for a court remains whether
an objectively reasonable person would conclude that a
creation is more “art” than useful object. How different
judges could answer such a question on a consistent basis is
anything but clear.

   Any attempt to guide judicial determinations of an
amorphous concept like “applied art” is unlikely to be
completely satisfying to all. But the approach we adopt today


    7
       For example, we have explained that the “transformation from
utilitarian object to work of art,” Concurrence at 22, occurs where an
object’s utilitarian functions cease. We can leave for another case
whether there might be some de minimis exception to this standard, where
an object continues to serve only the most trivial of utilitarian functions.
Further, we have explained that our focus is on objects that in fact
continue to serve real utilitarian functions (as opposed to those which may
retain the ability to serve utilitarian functions, or those which at one point
in history served such functions, see id.).
                    CHEFFINS V. STEWART                         13

instructs courts to focus precisely on an object’s continuing
utility—and not to ask whether that utility is somehow
subservient to an artistic creation. Difficult cases may still
arise, but our standard aims to limit the situations in which
they do.

                                C

    We now apply this standard to the facts of this case.

    The La Contessa began as a simple school bus—an object
which unquestionably served the utilitarian function of
transportation. To transform the bus into the La Contessa,
Cheffins and Jones adorned it with the visual trappings of a
16th-century Spanish galleon. While the La Contessa’s
elaborate decorative elements may have had many artistic
qualities, the La Contessa retained a largely practical function
even after it had been completed. At Burning Man, the La
Contessa was used for transportation, providing rides to
festival-goers, hosting musical performances and weddings,
and serving as a stage for poetry and acrobatics shows.
Indeed, the La Contessa often was driven about the Festival
grounds and was banned from the Festival in 2004 because
“its unsafe driving practices far exceeded community
tolerance and out-weighed the visual contribution” it made.

    Under the definition we adopt today, the La Contessa
plainly was “applied art.” It began as a rudimentary utilitarian
object, and despite being visually transformed through
elaborate artistry, it continued to serve a significant utilitarian
function upon its completion. As “applied art,” the La
Contessa was not a work of visual art under the VARA and
therefore not eligible for its protection. Therefore, the trial
14                 CHEFFINS V. STEWART

court properly granted summary judgment to Stewart on
Cheffins and Jones’s VARA claim.

                             IV

                              A

     Cheffins and Jones next argue that the trial court abused
its discretion when it excluded the testimony of Joanne
Northrup and Diedre DeFranceaux, two of their expert
witnesses, and when it refused to allow Cheffins and Jones to
supplement other expert reports. After conducting a lengthy
hearing on the matter, the trial court concluded that the
proffered testimony would be unduly speculative. The trial
court did not abuse its considerable discretion in this case.
We have repeatedly explained that “a trial court not only has
broad latitude in determining whether an expert’s testimony
is reliable, but also in deciding how to determine testimony’s
reliability.” Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1017 (9th Cir. 2004) (internal quotation marks
omitted).

                              B

    Cheffins and Jones raise two issues related to the trial
court’s jury instructions on abandoned property. First, they
contend that the trial court abused its discretion when it
declined to instruct the jury on abandoned property, lost
profits, and punitive damages based on Nevada Revised
Statues §§ 487.210–487.250. The trial court did not abuse its
discretion. The statutory scheme only applies to “vehicles
abandoned on public land,” and it is uncontested that the La
                       CHEFFINS V. STEWART                             15

Contessa remained on Stewart’s private land until its
destruction. N.R.S. § 487.235.8

    Second, Cheffins and Jones contend that the trial court
improperly instructed the jury on abandonment under Nevada
law, asserting that the given instruction failed to explain the
required showing of intent. The given instruction, however,
explained that “abandonment may be inferred from . . . acts
done” and thus comported with Nevada law. See J.H. Mallett
v. Uncle Sam Gold & Silver Mining Co., 1 Nev. 188, 204–05
(1865) (holding that “the moment the intention to abandon
and the relinquishment of possession unite, the abandonment
is complete”).

                                    C

    Cheffins and Jones next assert that the trial court abused
its discretion by failing to include jury instructions on lost
profits and punitive damages resulting from the destruction of
the La Contessa—which the court concluded were unduly
speculative. The court did not abuse its discretion. Moreover,
even if the district court had erred, such error was harmless
because the jury found in favor of Stewart on Cheffins and
Jones’s conversion claim, meaning that there were no
damages to award in any case. See Kennedy v. S. Cal. Edison
Co., 268 F.3d 763, 770 (9th Cir. 2001) (explaining that
“[h]armless error review applies to jury instructions in civil
cases”).



 8
   Cheffins and Jones’s related contention that the trial court should have
provided a jury instruction based on N.R.S. § 118A.460 fails for a similar
reason. That statute applies to landlord-tenant relationships, and is
inapplicable to the facts of this case.
16                 CHEFFINS V. STEWART

                               D

     Cheffins and Jones also contend that the trial court erred
when it admitted evidence of drug paraphenalia surrounding
the La Contessa as it sat on Stewart’s property. The trial court
first determined that it would not admit such evidence, but
then reversed itself and allowed the evidence “simply to show
the condition of things around the ship” when a witness
visited the La Contessa. We have previously explained that
“evidentiary rulings should not be reversed absent clear abuse
of discretion and some prejudice,” S.E.C. v. Jasper, 678 F.3d
1116, 1122 (9th Cir. 2012), and we see neither clear abuse of
discretion nor prejudice here. Such evidence was relevant to
the value of the La Contessa at the time of its destruction, and
the trial court provided the jury with an appropriate limiting
instruction.

                               E

     Cheffins and Jones next contend that the trial court erred
when it denied their motion for partial summary judgment on
their conversion claim. The conversion claim subsequently
was presented to a jury, which returned a verdict in favor of
Stewart. Cheffins and Jones’s appeal therefore fails at the
outset, because “we do not review the denial of summary
judgment when the case has gone to trial.” Affordable Hous.
Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir.
2006); see also Lum v. City & Cty. of Honolulu, 963 F.2d
1167, 1170 (9th Cir. 1992) (concluding that “there is no need
to review denials of summary judgment after there has been
a trial on the merits,” and dismissing appeal).
                   CHEFFINS V. STEWART                     17

                              V

    Finally, Cheffins and Jones challenge the court’s award
of attorneys’ fees to Stewart, which the court made after they
rejected an offer of judgment made under Nevada law.
Federal Rule of Civil Procedure 54(d) allows a party to
recover attorneys’ fees, when, among other things, a motion
specifies “the statute, rule, or other grounds entitling the
movant to the award.” Moreover, we have recognized that,
under Nevada law, “a prevailing [party] is entitled to recover
attorneys’ fees if an offer of judgment is rejected.” MRO
Commc’ns, Inc. v. AT&T, 197 F.3d 1276, 1281 (9th Cir.
1999); see Nev. R. Civ. P. 68.

    Cheffins and Jones assert that the timing requirements of
Federal Rule of Civil Procedure 68 apply to an offer of
judgment made under state law, rendering the award of
attorneys’ fees improper because the offer of judgment on
which the trial court based its award would not have been
timely. Stewart urges that Rule 68 does not apply.

    We agree with Stewart. “Rule 54 provides a federal
procedural mechanism for moving for attorney’s fees that are
due under state law.” Med. Protective Co.v. Pang, 740 F.3d
1279, 1283 (9th Cir. 2013). Therefore, “Nevada’s offer of
judgment rules and statutes . . . provide the applicable
procedure” for awarding attorneys’ fees in a case like this
one, where the only claim at the time Stewart made his offer
of judgment was a state law conversion claim. MRO,
197 F.3d at 1281–83 (“In an action where a district court is
exercising its subject matter jurisdiction over a state law
claim” the “state law denying the right to attorney’s fees or
giving a right thereto, which reflects a substantial policy of
the state, should be followed.” (quoting Alyeska Pipeline
18                     CHEFFINS V. STEWART

Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 259 n.31
(1975))). Because Federal Rule of Civil Procedure 54(d)(2)
provides the applicable procedure for awarding attorneys’
fees, and because Stewart’s offer of judgment complied with
the underlying Nevada state law rule, it was timely for
purposes of the trial court’s award of attorneys’ fees.9

      AFFIRMED.10



McKEOWN, Circuit Judge, concurring:

    I write separately to express my concern with the
majority’s definition of applied art, which centers on whether
an object has or retains a utilitarian function. Maj. Op. 10.
This focus runs the risk of unduly narrowing the protections
of artists under the Visual Artist Right’s Act of 1990,
17 U.S.C. § 106A (“VARA”), and not focusing on the work
as a whole. Although the majority’s formulation may protect
the clearest cases—those works that are “purely aesthetic” or
“so transformed through the addition of artistic elements that
[their] utilitarian functions cease,” Maj. Op. 11,—it leaves


 9
   While the parties did not brief the issue, we agree with the trial court
that there is no conflict between Federal Rule of Civil Procedure 68 and
Nevada Rule of Civil Procedure 68. See Goldberg v. Pac. Indem. Co.,
62 F.3d 752, 756 n.7 (9th Cir. 2010) (explaining that the MRO opinion is
not relevant to whether Arizona’s offer of judgment rule conflicts with
Federal Rule of Civil Procedure 68 because, unlike Arizona, Nevada’s
rule allows for recovery of attorneys’ fees).
 10
    The denial of Cheffins and Jones’s motion for summary judgment is
not appealable and their appeal from that order is therefore DISMISSED.
Affordable Hous. Dev. Corp., 433 F.3d at 1193.
                   CHEFFINS V. STEWART                       19

other cases—such as works of art that incorporate utilitarian
elements, or that could be put to practical purposes—out in
the cold. To better effectuate the purpose of VARA, we need
a more nuanced definition of “applied art” that balances
between the risk of unduly restricting VARA’s reach and the
risks of turning judges into art critics or consigning to
litigation every work of art that includes some utilitarian
function. In determining whether a work is “applied art,” the
right question to ask is whether the primary purpose of the
work as a whole is to serve a practical, useful function, and
whether the aesthetic elements are subservient to that
utilitarian purpose. Because the bus/Spanish galleon La
Contessa is applied art under either standard, I concur in the
judgment as well as parts I, II, IV, and V of the panel opinion.

     VARA enshrined the concept of droit moral, or “moral
rights,” in American law to a limited extent. Cheryl Swack,
Safeguarding Artistic Creation and the Cultural Heritage: A
Comparison of Droit Moral Between France and the United
States, 22 Colum.-VLA J.L. & Arts 361, 363 (1998). Long
recognized in Europe, moral rights “afford protection for the
author’s personal, non-economic interests in receiving
attribution for her work, and in preserving the work in the
form in which it was created, even after its sale or licensing.”
Jane C. Ginsburg, Copyright in the 101st Congress:
Commentary on the Visual Artists Rights Act and the
Architectural Works Copyright Protection Act of 1990,
14 Colum.-VLA J.L. & Arts 477, 478 (1990).

    VARA protects the moral rights of attribution and
integrity, but only for a narrow subset of the works of visual
art already protected under the Copyright Act. 3 Nimmer on
Copyright § 8D.06[A][2]. Thus, the creator of a qualifying
“painting, drawing, print, or sculpture,” or “still photographic
20                      CHEFFINS V. STEWART

image produced for exhibition purposes only,” 17 U.S.C.
§ 101, may “prevent any intentional distortion, mutilation, or
other modification of [the] work which would be prejudicial
to his or her honor” and to “claim authorship” of the work.
Id. § 106A(a). Coverage is limited to these listed
categories of works of visual art. The statute also prohibits
the destruction of work of “recognized stature.” Id.
§ 106A(a)(3)(B). As a result, acts of so-called “art murder”
like the removal of Diego Rivera’s mural from Rockefeller
Center, now have limits.1 Thus, when Kent Twitchell’s mural
depicting artist Ed Rucha was painted over, Twitchell sued
under VARA; he ultimately settled for $ 1.1 million.2

    The protections provided by VARA “are analogous to
those protected by Article 6bis of the Berne Convention.”
H.R. Rep. No. 101-514, at 5 (1990).3 Affording artists these

  1
   In 1934, Rivera’s unfinished mural was removed from the wall of the
RCA building and destroyed over the course of a weekend. The
Rockefellers apparently made this decision due to Rivera’s refusal to omit
the figure of Lenin from his work. See Rivera RCA Mural is Cut from
Wall, N.Y. Times, February 13, 1934, at 21. Indeed, the mutilation of a
Picasso painting, Trois Femmes, by two Australian “entrepreneurs” was
significant to the passage of VARA. See H.R. Rep. No. 101-514, at 17.
      2
      Although Twitchell’s generous settlement was heralded as “a
vindication of artists’ moral rights under VARA, the case provides no
judicial precedent on this matter.” Charles Cronin, Dead on the Vine:
Living and Conceptual Art and VARA, 12 Vanderbilt J. Ent. & Tech. L.
209, 219 n.49 (2010).
 3
    The Berne Convention secures “the protection of the rights of authors
in their literary and artistic works,” Berne Convention for the Protection
of Literary and Artist Works, art. 1, July 24, 1971, S. Treaty Doc. No. 99-
27 (1986), including moral rights “[t]o claim authorship” and “to object
to certain modifications and other derogatory actions,” id. at art. 6bis. The
United States acceded to the Berne Convention in 1988, but did not
                    CHEFFINS V. STEWART                         21

rights—which are otherwise largely not recognized in our
intellectual property system—helps foster a “climate of
artistic worth and honor that encourages the author in the
arduous act of creation.” Id. (internal quotations omitted);
see also Kelley v. Chicago Park Dist., 635 F.3d 290, 296–98
(7th Cir. 2011) (detailing the history of VARA).

     Although VARA amended the Copyright Act, its unique
protections do not extend to every copyrightable work.
Rather, the statute may be invoked only if the painting,
drawing, print, sculpture, or “still photographic image
produced for exhibition purposes only” is part of a “limited
edition of 200 copies or fewer” that have been “signed and
consecutively numbered by the author.” 17 U.S.C. § 101.
Significantly, a work does not fall within VARA’s protection
if, among other exclusions, it is mass-produced, intended for
use in advertising, or is “applied art.” Id.

    This case hinges on that final exception—applied art. The
parties agree that La Contessa, a Spanish galleon built on the
chassis of a school bus by Cheffins and Jones, was a
sculpture. The parties also do not contest that La Contessa
was a work of recognized stature. Thus VARA would
prohibit the destruction of La Contessa unless it was a work
of applied art.

    The majority focuses the inquiry “on whether the object
in question originally was—and continues to be—utilitarian
in nature.” Maj. Op. 9–10. Thus, the majority holds “that an
object constitutes a piece of ‘applied art’—as opposed to a
‘work of visual art’—where the object initially served a


recognize moral rights until Congress enacted VARA two years later.
Swack, supra at 363.
22                  CHEFFINS V. STEWART

utilitarian function and the object continues to serve such a
utilitarian function after the artist made embellishments or
alterations to it.” Maj. Op. 11. This definition pays
insufficient heed to the character of the work as a whole and
fails to clarify when the product of artistic creation has
crossed the threshold of functionality that transforms it from
visual to applied art.

     The central focus of our inquiry should be on whether a
work is primarily directed to a utilitarian purpose. The
majority’s bare statement provides scant guidance. At what
point does the transformation from utilitarian object to work
of art occur? Is any residual utilitarian function sufficient to
consign a work to the “applied art” label, or must the
utilitarian function be significant? Does it matter whether an
object within a work retains a possible, but unused or
impractical, utilitarian function versus whether it continues to
be used for its original purpose? What is the magic dividing
line that informs our legal determination? These questions
highlight the need for a more textured and flexible definition
of applied art.

    Defining the term “applied art” is no easy task. To be
sure, judicial attempts to categorize artistic creations are
fraught with difficulties. As Justice Holmes observed long
ago, judges make terrible art critics: “It would be a dangerous
undertaking for persons trained only to the law to constitute
themselves final judges of the worth of pictorial illustrations.”
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251
(1903). There is some irony in the fact that VARA was
enacted as part of the Judicial Improvements Act of 1990,
Pub. L. No. 101-650, which created eighty-five new federal
district and appellate judgeships. Thankfully, apart from
occasional fair use cases under the Copyright Act, these
                    CHEFFINS V. STEWART                       23

judges have been able to devote themselves to tasks other
than critiquing paintings and sculptures. Although VARA
does not ask us to assess the beauty or value of art, attempting
to discern whether a unique creation is visual or utilitarian art
poses similar challenges.

    The difficulty of our job is compounded because VARA
provides no definition of applied art. Leaders of the art
community warned Congress that VARA “does not offer firm
definitions” of applied and visual art, leaving “open for
conjecture the kinds of art and artists eligible for protection.”
Hearing on H.R. 3221, Visual Artists Rights Act of 1987,
Before the Subcomm. on Courts, Civil Liberties and the
Admin. of Justice of the H. Comm. on the Judiciary, 100th
Cong. 136 (1988) (testimony of the Association of Art
Museum Directors, American Arts Alliance, and American
Association of Museums). Congress was unmoved: the
House Report accompanying the bill unhelpfully states that
the definition of applied art is “self-explanatory” and instructs
courts construing the statute to use “common sense” as well
as the “generally accepted standards of the artistic
community.” H.R. Rep. No. 101-514, at 11, 13.

     Although many court decisions have addressed applied
art, these cases provide little guidance on how to distinguish
applied from visual art. The issue in nearly all applied art
cases is whether the work was copyrightable applied art or
instead a noncopyrightable work of “industrial design.” See,
e.g., Gay Toys, Inc. v. Buddy L Corp., 703 F.2d 970, 972 (6th
Cir. 1983) (“Congress intended to distinguish between
‘copyrightable works of applied art and uncopyrighted works
of industrial design.’” (quoting H.R. Rep. No. 1476, 94th
Cong., 2d Sess. 54)); Norris Indus., Inc. v. Int’l Tel. & Tel.
Corp., 696 F.2d 918, 920 (11th Cir. 1983) (“[There is a]
24                    CHEFFINS V. STEWART

distinction between works of applied art eligible for copyright
protection and industrial designs ineligible for protection.”);
Eltra Corp. v. Ringer, 579 F.2d 294, 297 (4th Cir. 1978)
(noting the “precise line between copyrightable works of
applied art and uncopyrighted works of industrial design”).

    The analysis in these cases is driven by the principle that
works may unquestionably be applied art, such as a detailed
carving on the back of a chair—an obviously utilitarian
object—but may also enjoy certain copyright protection.4
Whether such a work falls under VARA’s protections is a
different question. Thus, while these opinions have coalesced
around a definition of applied art for the purpose of copyright
protection as “pictorial, graphic, and sculptural works that are
intended to be or have been embodied in useful articles,” 8-
4A Nimmer on Copyright § 102, they do not provide an
answer under VARA because VARA protects a new and
different “genus” of “‘works of visual art,’” 3 Nimmer on
Copyright § 8D.06[A][2].

     VARA’s protections cannot be limited only to works
entirely devoid of any utilitarian purpose. As Judge Gesell
once noted: “Art through the ages has often served a
utilitarian purpose[].” Esquire, Inc. v. Ringer, 414 F. Supp.
939, 941 (D.D.C. 1976), rev’d 591 F.2d 796 (D.C. Cir. 1978).
Many outstanding sculptures, including the Caryatids of the
Acropolis and the monumental carvings of Ramses at the
temple of Karnak are in fact columns that provided buildings
with structural integrity. Medieval tapestries not only


 4
   Indeed, examples of original “pictoral, graphic, and sculptural works”
protected by copyright include dolls and toys, mosaics, and stained glass
designs. United States Copyright Office, Circular 40.0915, Copyright
Registration for Pictorial, Graphic, and Sculptural Works (2015).
                      CHEFFINS V. STEWART                             25

represented a form of fine art, but also “ke[pt] castles and
cathedrals free from draft.” William S. Lieberman, Modern
French Tapestries, 6 Metropolitan Museum of Art Bulletin
142, 142 (1948). Of course, the famous Bayeux tapestries,
which depict events leading to the Battle of Hastings, retain
their utilitarian function to some extent: they could still be
used to keep a drafty castle warm. Likewise, Tracy Emin’s
My Bed, displayed at the Tate Britain, incorporates Emin’s
real bed as a “monument to the heartache of a relationship
breakdown.”5 The bed arguably retains its original utilitarian
function—it remains a bed, and could still be slept in—but it
is no longer meant or used for this utilitarian purpose.
Rather, like the Bayeux tapestries, My Bed is now appreciated
and viewed as a work of creative expression and, when
viewed as a whole, the utilitarian object has become part of
a visual art piece.

    The modern era abounds with examples of fine art that
serve some utility. Perhaps the most famous sculpture of the
modern era—Rodin’s The Thinker—was conceived when the
artist was designing a set of monumental doors titled The
Gates of Hell.6 Doors, of course, are utilitarian objects that
facilitate the movement of people into and out of buildings.
Likewise, a young Pablo Picasso painted a massive
background piece for the ballet Le Tricorne. Although that
painting surely served some utilitarian purpose as a stage

  5
    Hannah Ellis-Petersen, Tracy Emin’s Messy Bed Goes on Display at
Tate for First Time in 15 Years, The Guardian (Mar. 30, 2015, 10:41 AM),
http://www.theguardian.com/uk-news/2015/mar/30/tracey-emins-messy-
bed-displayed-tate-britain-first-time-in-15-years.
 6
   Rodin envisioned Dante sitting and contemplating the scenes of eternal
damnation portrayed on the Gates. Albert E. Elsen, Rodin’s Thinker and
the Dilemmas of Modern Public Sculpture 43 (1985).
26                     CHEFFINS V. STEWART

curtain, following that debut, it has been displayed as a
painting for half a century. The painting was the focus of
intense debate when it was removed last year from the Four
Seasons restaurant in New York’s Seagram Building, where
it had hung since 1959.7 Some sculptures designed by Dale
Chihuly are fantastically artistic and original and yet could
also serve a utilitarian purpose of diffusing fresh water or
serving as a room divider. The artistic and utilitarian aspects
are entwined in some of Chihuly’s pieces.8

     It is easy to imagine a sculpture composed of an array of
utilitarian objects. VARA’s legislative history confirms this
situation: Congress emphasized that because “[a]rtists may
work in a variety of media, and use any number of materials
in creating their works . . . . whether a particular work falls
within the definition should not depend on the medium or
materials used.” H.R. Rep. No. 101-514, at 11. Indeed, a
Florida plumber/artist who created a sculpture with auto
parts, plumbing fixtures and scrap wiring, found himself in
the middle of VARA litigation when the “junk” was
removed.9 Automatically relegating these pieces—which are

 7
   Le Tricorne has found a new home at the New York Historical Society.
Benjamin Muller, After 55 Years in Vaunted Spot, a Picasso Is Persuaded
to Curl, N.Y. Times, Sept. 7, 2014, at A14.
     8
       Chihuly’s work is heralded for “render[ing] meaningless the
distinctions between utilitarian product and art, art and craft, beauty and
function.” Patterson Sims, Suola di Chihuly: Venezia and Seattle, in Dale
Chihuly: Installations 1964–1992 (1992).
     9
    The story of this fascinating dispute is outlined in Christopher J.
Robinson’s note: The “Recognized Stature” Standard in the Visual Artists
Rights Act, 68 Fordham L. Rev. 1935, 1958 (2000). The parties did not
contest that the work was a sculpture, but fought bitterly over whether the
visual art was of “recognized stature.” Id.
                    CHEFFINS V. STEWART                        27

unquestionably works of visual art—beyond the scope of
VARA simply because they may serve some practical
function would undermine the purpose of the law.

    The majority alludes to the fact that a work would not
necessarily fall outside VARA’s scope simply because it
could possibly serve some practical purpose, concluding that
La Contessa must be “applied art” because “it continued to
serve a significant utilitarian function upon its completion.”
Maj. Op. 13. But how significant the utilitarian function must
be—either when a work is initially created, or after it
undergoes artistic modifications—cannot be deduced from
the majority’s test for “applied art.” The analysis must be
more nuanced, and, as a matter of procedure, in some cases,
these issues will raise questions of fact that preclude
summary judgment.

    Art dictionaries and reference materials provide useful
guidance on this score. In seeking to distinguish applied art
from “fine art,” The Concise Oxford Dictionary of Art Terms
states that applied art is “Art that is created for useful objects
and remains subservient to the functions of those objects.”
The Concise Oxford Dictionary of Art Terms 13 (Michael
Clarke and Deborah Clarke eds., 2d ed. 2010) (emphasis
added). As examples, it lists “ceramics, furniture, glass,
leather, metalwork, textiles, arms and armour, clocks, and
jewelry.” Id. Likewise, The Thames & Hudson Dictionary
of Art Terms confirms that applied art is “Art which is
essentially functional, but which is also designed to be
aesthetically pleasing.” The Thames & Hudson Dictionary of
Art Terms 17 (Edward Lucie-Smith ed., 2d ed. 2004)
(emphasis added). This dictionary provides a similar list of
applied art items: “furniture, metalwork, clocks, textiles,
[and] typography.” Id. The definition of applied art in
28                                CHEFFINS V. STEWART

materials published by the World Intellectual Property
Organization (“WIPO”)—the body tasked with administering
the Berne Convention—is also helpful. WIPO has defined
applied art as “cover[ing] the artistic contributions of the
makers of knick-knacks, jewellery, gold and silverware,
furniture, wallpaper, ornaments, clothing, etc.” WIPO, Guide
to the Berne Convention for the Protection of Literary and
Artistic Works 16–17 (1978).10

     These definitions illustrate that applied art does not
encompass every work that has any conceivable utilitarian
purpose, nor one that incorporates functional objects or
pieces. Rather, the definitions employed by art dictionaries
and the objects they list reflect that the key question is
whether the primary purpose or essence of the work is
utilitarian or functional.

    To effect the purpose of VARA and provide guidance for
the art community, I believe courts should evaluate the work
as a whole, asking whether its primary purpose is to serve a
useful function and whether the artistic creation is subservient
to that purpose. If the primary purpose is for the work to be
viewed and perceived as art, then any incidental utilitarian
function will not push it outside the scope of VARA. If a
work’s primary purpose is functional, however, no amount of
aesthetic appeal will transfer it into visual art subject to
VARA’s protections. Determining a work’s primary purpose
need not constitute a judicial inquiry into the nature of art.
Rather, as in other legal contexts, courts should ask whether


             10
                     T his document is availab le on-line at
f t p : / / f t p . wi p o . i n t / p u b / l i b r a r y/ e b o o k s / h i s t o r i c a l - i p b o o k s /
GuideToTheBerneConventionForTheProtectionOfLiteraryAndArtistic
WorksParisAct1971.pdf
                    CHEFFINS V. STEWART                       29

“a reasonable observer” would “consider [the work] designed
to a practical degree” for a utilitarian or artistic purpose. See
Lozman v. City of Riviera Beach, 133 S. Ct. 735, 741 (2013)
(articulating a “primary purpose” test for determining
whether an object is a “vessel”).

     In this case, applying the analysis I outline yields the
same result as the majority: La Contessa was applied art. The
school bus-turned-galleon was designed for, and employed
as, a performance venue, restaurant, and means of
transportation around the Burning Man festival. Poets,
acrobats, and bands performed on its decks. It drove revelers
from party to party within Nevada’s Black Rock desert. On
various occasions, the galleon was driven at high speeds,
prompting festival organizers to send Cheffins and Jones a
letter condemning its “unsafe driving practices.” When La
Contessa was not serving this purpose, it was dragged to a
field, covered with a tarp, and left to sit idle for months at a
time. Taken as a whole, this is powerful evidence that the
primary purpose of La Contessa was to serve the utilitarian
functions of performance venue, gathering space, and people-
mover. Although Cheffins and Jones testified passionately
about La Contessa’s beauty and the artistic expression they
felt it embodied—and it is an impressive work of art in many
respects—I conclude it is applied art because its aesthetic
appeal was subservient to its primary utilitarian purpose.
Thus, the VARA claim fails.

    VARA has spawned comparatively little litigation over
the last quarter-century, and I hope that no spasm of artistic
destruction or mutilation changes this trend. However, given
the unique protections under VARA and the inherent
difficulties in defining “visual arts” and “applied arts,” the
arts, the art world, and the legal community would benefit
30               CHEFFINS V. STEWART

from a more nuanced and flexible test for determining the
scope of VARA’s protection of artistic works.
