Sarasota Should Be Sued Over WWII-Themed Statue: Petition

SARASOTA, FL — A vocal critic of the 25-foot-tall bayfront statue “Unconditional Surrender,” Sarasota resident Kelly Franklin called it “a complicated, interesting art piece,” but one that shouldn’t be on prominent display anywhere in the city, in a November interview with Patch.

The piece is a three-dimensional depiction of the iconic photograph "V-J Day in Times Square" by Alfred Eisenstaedt. In the image, the photographer captured a U.S. Navy sailor grabbing and kissing a woman in a white dress — a complete stranger — on the streets of New York City on Aug. 14, 1945, the day the United States declared victory over Japan, ending World War II. It was published in Life magazine.

There’s been much debate about the statue among Sarasota residents in recent years. Many veterans view it as a celebration of the end of World War II. There are also some who criticize the work as a symbol of a woman groped against her will.

Franklin was among the statue’s critics who spoke at a Nov. 16 Sarasota City Commission regarding its fate as the city planned to build a new roundabout at U.S. 41 and Gulfstream Avenue, where “Unconditional Surrender” previously stood. Ultimately, commissioners decided to move the statue to another bayfront location between O'Leary's Tiki Bar & Grill and Marina Jack. It was moved to its new spot on the waterfront Jan. 7.

At that November meeting, Franklin spoke against the romanticization of sexual assault and the effect the depiction could have on youth and others who have experienced such an assault. Her other chief concern was the possibility of the city being sued for copyright infringement because Time Inc. owns the rights to the original image.

A former publishing professional who has worked with copyrights in her line of work, she said the statue opens the city to potential legal issues, especially after a 2015 lawsuit involving the film "Raging Bull" made its way to the U.S. Supreme Court.

In the case, Paula Petrella, the daughter of Frank Petrella, whose book and screenplay inspired the Oscar-winning film, sued MGM and 20th Century Fox for copyright infringement, according to The Guardian. In her argument, Paula said that any rights to the story became hers when her father died.

Her father died in 1981, though, and she waited until 2009 to take any legal action. MGM and 20th Century Fox unsuccessfully argued that the case should be thrown out because of the delay. They wound up settling with her.

"It settled what had been an open question in publishing circles since the 1976 Copyright Act was put forward," Franklin told Patch in November. "The idea of a three-year statute of limitations is wrong. At any time (a copyright infringement lawsuit) can be brought forward."

In such a lawsuit, the plaintiff can hope to reclaim damages for the three most recent years, she added.

Now, Franklin has launched a petition asking Meredith Corporation, which owns Time Inc., to sue the city for copyright infringement. So far, more than 100 people have signed it.

She plans to present the petition to Meredith’s general counsel and board of directors Feb. 19, which is “the anniversary of the #MeToo tagging of our monster,” she told Patch Sunday.

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This is a reference to a February 2019 incident where the statue was tagged with a giant #MeToo in red spray paint, a nod to the #MeToo movement of individuals stepping forward to call out powerful and famous men for sexual abuse and harassment. The city kept the statue up and pressure washed it where it stood after this incident.

Franklin said she’s reaching out to influential individuals in Sarasota — “local artists, writers, attorneys, women, civic figures” — to sign the petition. From there, she’ll reach out to national women’s rights and copyright groups.

According to the petition, those who have signed it say they “support art, women's rights, and the same U.S. Constitution that our brave service members put their lives on the line to uphold, and therefore we implore Time Inc. to bring federal suit against the city of Sarasota to secure a take-down order for the city government’s willful display of an unlicensed derivative of Alfred Eisenstaedt’s iconic copyrighted image: ‘VJ Day in Times Square.’ It is the only way to end the circus created by this monumental misunderstanding.”

At the Nov. 16 meeting, City Attorney Robert Fournier addressed concerns that a lawsuit might be filed against the city for copyright infringement. Federal copyright laws say that there is a three-year window to file a copyright infringement lawsuit, he said.

The question is, when does the timer for this three-year period start, he asked. Under the discovery rule, this time accrues "when the holder of the copyright first discovers their rights were violated." But under the injury rule, the injury only stops when the infringement stops, regardless of when it's discovered, he said.

The 11th Circuit Court of Appeals, which has jurisdiction over Florida, "operates under the discovery rule," Fournier said.

He also noted that in 2010, when the statue was first loaned to the city, it came with a three-year indemnity provision that would pay for any damages the city might sustain for displaying the statue through June 2013. Time Inc. and the Public Art Committee were also in correspondence over the statue and Time indicated the ownership of the image had been in dispute since 2006, he added.

Time Inc. said the city would have to license the image from them at that point, but never followed up on it, Fournier said. It could also be "credibly argued that the statute of limitation started to run back then and expired in 2010."

He added, "In light of the time that's gone by… I have the feeling they're not terribly interested in pursuing it."