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Kevin Costner Untouchable in Sculpture Dispute

Jeff Cole
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Partner at Zimmer, Duncan & Cole

Posted on May 10, 2012

In a 5-0 decision released this morning, the South Dakota Supreme Court sided with Kevin Costner in a long-running dispute about a set of bronze, bison scupltures.

Costner first visited South Dakota over twenty years ago while shooting the movie, "Dances With Wolves."  He began making plans to open a luxury resort and casino in Deadwood called The Dunbar, after his character in that movie, Lt. John J. Dunbar.  The casino plans sputtered for years and were eventually abandoned.
As part of his preparations, however, Costner commissioned an artist to forge a set of 17, larger-than-life bronze buffalo statues, which would be displayed as a group in the main concourse of the hotel, thundering along in a herd while being pursued by three sculpltures of Lakota hunters on horseback.
The artist, Peggy Detmers, agreed to do the work for a reduced fee for the opportunity to recoup profits from sales of miniatures in the hotel gift shop.
A decade passed, and The Dunbar was still unbuilt.  Costner then drafted a new contract, written in the first person, which Detmers signed.  Apparently, neither used a lawyer.  The contract provided:
Although I do not anticipate this will ever arise, if The Dunbar is not built within ten (10) years or the sculptures are not agreeably displayed elsewhere, I will give you 50% of the profits from the sale of the one and one-quarter life scale sculptures after I have recouped all my costs incurred in the creation of the sculptures and any such sale. The sale price will be at our above standard bronze market pricing. All accounting will be provided. In addition, I will assign back to you the copyright of the sculptures so sold (14 bison, 3 Lakota horse and riders).
Detmers finished work on the sculptures, but the resort was still not started.  The scupltures were then installed near the proposed site for the resort, in a visitor's center called "Tatanka."  Detmers filed a lawsuit in 2008 regarding the meaning of the underlined sentence, and challenging the idea that the scupltures were "agreeably displayed elsewhere", since the resort was never built.
The Supreme Court ruled on two issues: one factual, one legal.  As a factual matter, the Court refused to second-guess the trial judge who heard the testimony live and was able to observe the witnesses' demeanor.  The trial court had concluded that Detmers was never given the impression that The Dunbar was going to be built, only that it was a possibility.  Thus, when she agreed to the placement of the sculptures at Tatanka, she could not claim that she was misled about plans for the future.
The legal issue involved the defintion of the word "elsewhere."  The trial court used the dictionary defintion, which here means, essentially "anywhere else besides The Dunbar".  Since The Dunbar was never built, the trial judge ruled that anywhere else in the world would qualify for the distinction of "elsewhere."  And since Tatanka was a separate (although contiguous) parcel of land to the proposed Dunbar site, Tatanka, therefore, was "elsewhere." The Supreme Court agreed with this analysis.
If it sounds like word-play to you, you're not alone.  The moral of the story is not to enter into important contracts without an attorney.  And if you're in the middle of a contract dispute (or merely just concerned about your rights), the time to call an attorney is yesterday.
As a result of the Court's ruling, the scupltures will remain at Tatanka.  This is good news for Deadwood, but not the result Detmers was hoping for.

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