US Court of Appeals deals blow to artist's fight against Fidelity

David Phillips , the artist who dared to fight Fidelity Investments, has been dealt a legal setback that could end his case against the company. The US Court of Appeals ruled Tuesday that Fidelity can remove Phillips's work from a South Boston sculpture park that the company paid him to create in 1999.

The ruling could mark the end of the artist's three-year legal battle to stop Fidelity from altering his work at Eastport Park, a site on just over an acre of land near Boston's World Trade Center. The company had proposed changes on the site as part of a renovation. Phillips had hoped the case would set precedent for a pair of relatively new laws designed to protect artists.

``I'm not sure if I've helped artists or hurt artists in this battle," Phillips said yesterday. ``It was probably very naive of me to think that artist rights would prevail over real estate and power."

Andrew Epstein , a lawyer at Barker, Epstein & Loscocco , said he would continue to represent Phillips for free if he wanted to appeal. But Phillips said he is not sure of his next move. ``It's going to take a lot of thought and a lot of discussion with [Epstein]," he said.

Fidelity Investments paid Phillips $575,000 to design the park outside the offices of Pembroke Real Estate, a Fidelity-owned company. The artist hauled 200 tons of granite from Maine for the park, which opened in 2000. The dedication ceremony was attended by Fidelity's chief executive officer, art collector Edward C. ``Ned" Johnson III.

But within a year, a landscaper hired by Fidelity to redesign Eastport Park to make it more accessible recommended removing and relocating Phillips's sculptures, according to court files. When Phillips protested, Fidelity agreed to keep the majority of the sculptures, but wanted to make changes to walkways and other aspects of his work. Phillips still objected, and filed his lawsuit. He argued that he was protected under the federal Visual Artists Rights Act and the Massachusetts Art Preservation Act, both meant to protect artists from distortion or other changes of their work.

Phillips, whose other art installations include the sliced boulders outside the Porter Square MBTA station, won the first round in 2003, when US District Court Judge Patti B. Saris issued a restraining order barring Fidelity from making changes. But a series of appeals -- by both Fidelity and Phillips -- led to this week's ruling by the US Court of Appeals.

In an opinion filed Tuesday, Circuit Judge Kermit V. Lipez ruled that the federal act did not apply to ``site-specific" works such as Phillips's. In 2004, the state's Supreme Judicial Court had ruled that the Massachusetts act did not apply to the case because the contract between Phillips and Fidelity was not recorded in the county registry of deeds.

In 2003, Fidelity stated that it wanted to remove all of Phillips's art and cut ties with him because the company was concerned that he would make it difficult to make any changes on the site. Yesterday, Fidelity spokesman Steve Austin said Fidelity was not ready to discuss its plans for Eastport Park.

Geoff Edgers can be reached at gedgers@globe.com.