In taking judicial notice of defendant’s counterclaim charging allurement we hold this charge to be one of ordinary negligence liability, already found to be without merit in this proceeding; however, we extend this judicial notice to embrace that section of plaintiff’s response to the related charge of dangerous nuisance wherein plaintiff alleges damage from the strong hence derogatory implication that his sculptural creation, with a particular view to its internal components, was designed and executed not merely to suggest but to actually convey menace, whereto he exhibits extensive dated and annotated sketches, drawings, and notes made, revised, and witnessed in correspondence, demonstrating that at no time was the work, in any way or ways as a whole or in any component part or parts or combinations thereof including but not limited to sharp planes, spirals, and serrated steel limbs bearing distinct resemblances to teeth, ever in any manner conceived or carried out with intent of entrapment and consequent physical torment, but to the contrary that its creation was inspired and dictated in its entirety by wholly artistic considerations embracing its component parts in an aesthetic synergy wherein the sum of these sharp planes, jagged edges and toothlike projections aforementioned stand as mere depictions and symbols being in the aggregate greater than the sum of the parts taken individually to serve the work as, here quoting the catalogue distributed at its unveiling, ‘A testimony to man’s indiminable [SIC] spirit.’
We have in other words plaintiff claiming to act as an instrument of higher authority, namely ‘art,’ wherewith we may first cite its dictionary definition as ‘(1) Human effort to imitate, supplement, alter or counteract the work of nature.’ Notwithstanding that Cyclone Seven clearly answers this description especially in its last emphasis, there remain certain fine distinctions posing some little difficulty for the average lay observer persuaded from habit and even education to regard sculptural art as beauty synonymous with truth in expressing harmony as visibly incarnate in the lineaments of Donatello’s David, or as the very essence of the sublime manifest in the Milos Aphrodite, leaving him in the present instance quite unprepared to discriminate between sharp steel teeth as sharp steel teeth, and sharp steel teeth as artistic expressions of sharp steel teeth, obliging us for the purpose of this proceeding to confront the theory that in having become self referential art is in itself theory without which it has no more substance than Sir Arthur Eddington’s famous step ‘on a swarm of flies,’ here present in further exhibits by plaintiff drawn from prestigious art publications and highly esteemed critics in the lay press, where they make their livings, recommending his sculptural creation in terms of slope, tangent, acceleration, force, energy and similar abstract extravagancies serving only a corresponding self referential confrontation of language with language and thereby, in reducing language itself to theory, rendering it a mere plaything, which exhibits the court finds frivolous. Having here in effect thrown the bathwater out with the baby, in the clear absence of any evidentiary facts to support defendants’ countercharge ‘dangerous nuisance,’ we find it without merit.
We next turn to a related complaint contained in defendant James B’s cross claim filed in rem Cyclone Seven charging plaintiff, the Village, ‘and other parties and entities as their interests may appear’ with erecting and maintaining a public nuisance in the form of ‘an obstruction making use of passage inconvenient and unreasonably burdensome upon the general public’ (Fugate v. Carter, 151 Va. 108, 144 S.E. 483, 1928; Regester v. Lincoln Oil Ref. Co., 95 lnd.App. 425, 183 N.E. 693, 1933). As specified in this complaint, Cyclone Seven stands 24 feet 8 inches high with an irregular base circumference of approximately 74 feet and weighs 24 tons, and in support of his allegation of public nuisance defendant cites a basic tenet of early English law defining such nuisance as that ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects,’ further citing such nuisance as that which ‘injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public’ (Commonwealth v. South Covington & Cincinnati Street Railway Co., 181 Ky. 459, 463, 205 SW 581, 583, 6 A.LR 118, 1918). Depositions taken from selected Village residents and submitted in rem Cyclone Seven include: ‘We’d used to be this nice peaceable town before this foreigner come in here putting up this [expletive] piece of [obscenity] brings in every [expletive] kind of riffraff, even see some out of state plates’; ‘Since that (expletive) thing went up there I have to park my pickup way down by Ott’s and walk all hell and gone just for a hoagie’; ‘Let’s just see you try and catch a train where you can’t hardly see nothing for the rain and sleet and you got to detour way round that heap of [obscenity] to the depot to get there’; ‘I just always used the men’s room up there to the depot but now there’s times when I don’t hardly make it’; ‘They want to throw away that kind of money I mean they’d have just better went and put us up another (expletive) church.’
Clearly from this and similar eloquent testimony certain members of the community have been subjected to annoyance and serious inconvenience in the pursuit of private errands of some urgency; however recalling to mind that vain and desperate effort to prevent construction of a subway kiosk in Cambridge, Massachusetts, enshrined decades ago in the news headline PRESIDENT LOWELL FIGHTS ERECTION IN HARVARD SQUARE, by definition the interests of the general public must not be confused with that of one or even several individuals (People v. Brooklyn & Queens Transit Corp., 258 App.Div. 753, 15 N.Y.S.2d 295, 1939, affirmed 283 N Y. 484, 28 N.E.2d 925, 1940); furthermore the obstruction is not so substantial as to preclude access (Holland v. Grant County, 208 Or. 50, 298 P.2d 832, 1956; Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95, 1954), and in finding the former freedom of access to have been provided by mere default where no delineated path or thoroughfare was ever ordained or even contemplated this claim is denied.
On a lesser count charging private nuisance, H R Suggs Jr, joins himself to this proceeding via intervention naming all parties thereto in his complaint on grounds of harboring a dog ‘which makes the night hideous with its howls’ which the court severs from this action nonetheless taking judicial notice of intervener’s right inseparable from ownership of the property bordering directly thereupon, to its undisturbed enjoyment thereof (Restatement of the Law, Second, Torts 2d, 822C), and remands to trial. Similarly, whereas none of the parties to this action has sought relief on behalf of the well being and indeed survival of the sculpture’s unwilling resident, and whereas a life support system of sorts has been devised pro tem thereto, this matter is not at issue before the court, which nonetheless, taking judicial notice thereof should it arise in subsequent litigation, leaves it for adjudication to the courts of this local jurisdiction.
We have now cleared away the brambles and may proceed to the main action as set forth in plaintiff’s petition for a preliminary injunction seeking to hold inviolable the artistic and actual integrity of his sculptural creation Cyclone Seven in situ against assault, invasion, alteration, or destruction or removal or any act posing irreparable harm by any person or persons or agencies thereof under any authority or no authority assembled for such purpose or purposes for any reason or for none, under threat of recovery for damages consonant with but not limited to its original costs. While proof of ownership is not at issue in this proceeding, parties agree that these costs, including those incident to its installation, in the neighborhood of fourteen million dollars, were borne by contributions from various private patrons and underwritten by such corporate entities as Martin Oil, Incidental Oil, Bush AFG Corp., Anco Steel, Norfolk & Pee Dee Railroad, Frito-Cola Bottling Co., and the Tobacco Council, further supported with cooperation from the National Arts Endowment and both state and regional Arts Councils. The site, theretofore a weed infested rubble strewn area serving for casual parking of vehicles and as an occasional dumping ground by day and trysting place by night, was donated under arrangements worked out between its proprietor Miller Feed Co. and the Vi
llage in consideration of taxes unpaid and accrued thereon over the preceding thirty-eight years. In re the selection of this specific site plaintiff exhibits drawings, photographs, notes and other pertinent materials accompanying his original applications to and discussions with the interested parties aforementioned singling out the said site as ‘epitomizing that unique American environment of moral torpor and spiritual vacuity’ requisite to his artistic enterprise, together with correspondence validating his intentions and applauding their results. Here we refer to plaintiff’s exhibits drawn from contemporary accounts in the press of ceremonies inaugurating the installation of Cyclone Seven wherein it was envisioned as a compelling tourist attraction though not, in the light of current events, for the reasons it enjoys today. Quoted therein, plaintiff cites, among numerous contemporary expressions of local exuberance, comments by then presiding Village Board member J Harret Ruth at the ribbon cutting and reception held at nearby Mel’s Kandy Kitchen with glowing photographic coverage, quoting therefrom ‘the time, the place, and the dedication of all you assembled here from far and wide, the common people and captains of industry and the arts rubbing elbows in tribute to the patriotic ideals rising right here before our eyes in this great work of sculptural art.’
Responding to plaintiff’s exhibits on this count, those of defendant appear drawn well after the fact up to and including the present day and provoked (here the court infers) by the prevailing emotional climate expressed in, and elicited by, the print and television media, appending thereto recently published statements by former Village official J Harret Ruth in his current pursuit of a seat on the federal judiciary referring to the sculptural work at the center of this action as ‘a rusting travesty of our great nation’s vision of itself and while we may pause to marvel at his adroitness in ascertaining the direction of the parade before leaping in front to lead it we dismiss this and supporting testimony supra as contradictory and frivolous, and find plaintiff’s exhibits in evidence persuasive.
Another count in plaintiff’s action naming defendants both within and beyond this jurisdiction seeks remedy for defamation and consequent incalculable damage to his career and earning power derived therefrom (Reiman v. Pacific Development Soc., 132 Or. 82, 284 P. 575, 1930; Brauer v. Globe Newspaper Co., 351 Mass. 53, 217 N.E.2d 736, 1966). It is undisputed that plaintiff and his work, as here represented by the steel sculpture Cyclone Seven, have been held up to public ridicule both locally and, given the wide ranging magic of the media, throughout the land, as witnessed in a cartoon published in the South Georgia Pilot crudely depicting a small dog pinioned under a junk heap comprising old bedsprings, chamber pots, and other household debris, and from the Arkansas Family Visitor an editorial denouncing plaintiff’s country of origin as prominent in the Soviet bloc, thereby distinctly implying his mission among us to be one of atheistic subversion of our moral values as a Christian nation, whereas materials readily available elsewhere show plaintiff to have departed his birthplace at age three with his family who were in fact fleeing the then newly installed Communist regime. We take judicial notice of this exhibit as defamatory communication and libellous per se, tending ‘to lower him in the estimation of the community or to deter third persons from associating or dealing with him’ (Restatement of the Law, Second, Torts 2d, 559), but it remains for plaintiff to seek relief in the courts of those jurisdictions.
Similarly, where plaintiff alleges defamation in this and far wider jurisdictions through radio and television broadcast we are plunged still deeper into the morass of legal distinctions embracing libel and slander that have plagued the common law since the turn of the seventeenth century. As slander was gradually wrested from the jurisdiction of the ecclesiastical courts through tort actions seeking redress for temporal damage rather than spiritual offense, slander became actionable only with proof or the reasonable assumption of special damage of a pecuniary character. Throughout, slander retained its identity as spoken defamation, while with the rise of the printing press it became libel in the written or printed word, a distinction afflicting our own time in radio and television broadcasting wherein defamation has been held as libel if read from a script by the broadcaster (Hartmann v. Winchell, 296 N.Y. 296, N.E.2d 30, 1947; Hryhorijiv v. Winchell, 1943, 180 MISC. 574, 45 N.Y.S.2d 31, affirmed, 267 App.Div. 817, 47 N.Y.S.2d 102, 1944) but as slander if it is not. But see Restatement of the Law, Second, Torts 2d, showing libel as ‘broadcasting of defamatory matter by means of radio or television, whether or not it is read from a manuscript’ (#568A). Along this tortuous route, our only landmark in this proceeding is the aforementioned proof or reasonable assumption of special damage of a pecuniary character and, plaintiff failing in these provisions, this remedy is denied.
In reaching these conclusions, the court acts from the conviction that risk of ridicule, of attracting defamatory attentions from his colleagues and even raucous demonstrations by an outraged public have ever been and remain the foreseeable lot of the serious artist, recalling among the most egregious examples Ruskin accusing Whistler of throwing a paint pot in the public’s face, the initial scorn showered upon the impressionists and, once they were digested, upon the Cubists, the derision greeting Bizet’s musical innovations credited with bringing about his death of a broken heart, the public riots occasioned by the first performance of Stravinsky’s Rite of Spring, and from the day Aristophanes labeled Euripides ‘a maker of ragamuffin mannequins’ the avalanche of disdain heaped upon writers: the press sending the author of Ode on a Grecian Urn ‘back to plasters, pills, and ointment boxes,’ finding Ibsen’s Ghosts ‘a loathsome sore unbandaged, a dirty act done publicly’ and Tolstoy’s Anna Karenina ‘sentimental rubbish,’ and in our own land the contempt accorded each succeeding work of Herman Melville, culminating in Moby Dick as ‘a huge dose of hyperbolical slang, maudlin sentimentalism and tragic-comic bubble and squeak,’ and since Melville’s time upon writers too numerous to mention. All this must most arguably in deed and intent affect the sales of their books and the reputations whereon rest their hopes of advances and future royalties, yet to the court’s knowledge none of this opprobrium however enviously and maliciously conceived and however stupid, careless, and ill informed in its publication has ever yet proved grounds for a successful action resulting in recovery from the marplot. In short, the artist is fair game and his cause is turmoil. To echo the words of Horace, Pictoribus atque poetis quidlibet audendi semper fuit aequa potestas, in this daring invention the artist comes among us not as the bearer of idées reçues embracing art as decoration or of the comfort of churchly beliefs enshrined in greeting card sentiments but rather in the aesthetic equivalent of one who comes on earth ‘not to send peace, but a sword.’
The foregoing notwithstanding, before finding for plaintiff on the main action before the court set forth in his motion for a preliminary injunction barring interference of any sort by any means by any party or parties with the sculptural creation Cyclone Seven the court is compelled to address whether, following such a deliberate invasion for whatever purpose however merciful in intent, the work can be restored to its original look in keeping with the artist’s unique talents and accomplishment or will suffer irreparable harm therefrom. Bowing to the familiar adage Cuilibet in arte sua perito est credendum, we hold the latter result to be an inevitable consequence of such invasion and such subsequent attempt at reconstitution at the hands of those assembled for such purposes in the form of members of the local Fire Department, whose training and talents such as they may be must be found to lie elsewhere, much in the manner of that obituary upon our finest poet of the century wherein one of his purest lines was reconstituted as ‘I do not think they will sing to me’ by a journalist trained to eliminate on sight the superfluous ‘that.’
For the reasons set out above, summary judgment is granted to plaintiff as to preliminary injunction.
They heard the racket before she got out of the car, through the rain running up the wet steps of that veranda to tug at the door, dow
n the hall past the library and into the sunroom with —Oscar! What’s going on!
—Damn.
—Well stop thrashing around, you could tip that thing over and hurt yourself. I mean what are you trying to do.
—Hurt myself! What do you think I, where is she what does it look like. She sat me here in a draft and just left me here and the rain starts I’ve been trying to close this damned, damned . . .
—Yes all right just, if you’ll just relax and let me wait, will you just let go of it! She twisted the cane’s handle free of the blind’s louvers where he’d thrust it through trying to snag the catch on the casement window, —there. And she got it closed. —Did it occur to you to simply move your chair out of the . . .