In a 5-0 decision released last week, the South Dakota Supreme Court sided with Kevin Costner in a long-running dispute about a set of bronze, bison sculptures. The case is entitled, Peggy Detmers v. Kevin Costner and The Dunbar, Inc., 2012 S.D. 35.
Peggy Detmers is a wildlife biologist by education, but a skilled artist by trade. She is a native of South Dakota and a graduate of South Dakota State University. Within a few years of graduating, she began pursuing a new career depicting wildlife, rather than in studying it.
Her first sculptures included a chimpanzee, a cougar, bison, and a bald eagle. In the early 1990’s, her artwork caught the eye of a visitor to South Dakota, who had a much larger plan for her talents.
That visitor, of course, was another, fellow artist named Kevin Costner. He first visited South Dakota while shooting the movie, “Dances With Wolves.” He often spoke warmly about the State and his experiences here, particularly those in the northern Black Hills. This affection led him to begin planning 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, and before anyone suspected the project was doomed, Costner commissioned Peggy Detmers to forge a set of 17, larger-than-life bronze buffalo statues, which would be the highlight of the resort. The statutes would be displayed as a group in the main concourse of the hotel, thundering along in a herd while being pursued by three sculptures of Lakota hunters on horseback.
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 and to expand her notoriety to the hotel’s stream of well-heeled guests.
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. A portion of the contract said:
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 construction on the resort had still not yet started. The sculptures were then installed next to the proposed site for the resort, in a visitor’s center called “Tatanka.”
When it became clear that the resort was not going to be built, Detmers filed a lawsuit in 2008 seeking to force the sale of the sculptures so she could finally make money from her years of hard work. The lawsuit centered on the meaning of the underlined phrase above, and challenged the notion 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 definition of the word “elsewhere.” The trial court used the dictionary definition, 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.
However, if it sounds like word-play to you, you’re not alone.
As a result of the Court’s ruling, the sculptures will remain at Tatanka. This is good news for Deadwood, but not the result Detmers was hoping for.
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.
