Kevin Costner’s Bison
The movie star, Kevin Costner, who is also a hospitality entrepreneur, won a round last week in a lawsuit disputing what’s to be done with an elaborate ensemble of sculptures he commissioned years ago for a luxury resort he has fantasized about but never built. The court made the issue sound simpler than the parties thought it was and the opposing lawyer promises an appeal.
Costner’s fantasy, inspired by his heroic 1990 film “Dances With Wolves,” in which he starred as Lt. John J. Dunbar, imagined a 5-star hotel in the Black Mountains near Deadwood, South Dakota. For the centerpiece of the resort, to be called The Dunbar, Costner commissioned 17 massive bronze sculptures, assembled as the “Lakota Bison Jump,” from the noted local artist Peggy Detmers.
They depict 14 bison and three Native Americans hunting them on horseback, at 125% of life-scale. Costner initially commissioned the sculptures in 1994 under an oral agreement, paying Detmers $250,000. The two agreed to share royalties from sales of reproductions of the sculptures, which they expected would generate millions more.
By 2000, however, the Dunbar resort was not yet underway, and Detmers became anxious about whether her sculptures would be displayed and royalties on sales begin to flow. Costner reassured her in a two-page letter of May 2000, which included the following language whose meaning the parties have been disputing:
Although I do not anticipate this will ever arise, if the Dunbar is not built [by 2010] or the sculptures are not agreeably displayed elsewhere, I will give you 50% of the profits from the sale of the sculptures.
In 2002, Costner put the sculptures on the land where the resort was to be built, where they remain today, as a stand-alone visitors’ center, called Tatanka. The luxury resort remains a fantasy in Costner’s mind.
Detmers said that Costner is therefore now obliged to sell the sculptures, which she supposes could fetch some $4 to $6 million, and split the proceeds with her. Costner responded that he never promised to sell the sculptures, only to split the proceeds if he decided, in his sole discretion, to sell them.
The court found a shorter way through that disagreement: the sculptures are “agreeably displayed elsewhere,” at the visitors’ center, so the meaning of the phrase about selling them need not be determined.
Detmers complains that the sculptures are not “displayed elsewhere” because they are displayed on the Dunbar plot, not “elsewhere.” The judge reasoned differently, saying because the Dunbar was never built, the sculptures are “displayed elsewhere.”
The judge also bought Costner’s view of events in 2002 to conclude that Detmers had agreed on the display at the visitors’ center. No wonder the appeal.
Detmers stresses that her deal was to make the sculptures for a discounted up-front price, capturing the bulk of value from sales a 5-star resort could produce.
Compared to the wealthy patrons of the grand resort Costner envisioned, visitors to the small-scale visitors’ center are unlikely to order lucrative reproductions of Detmers’ sculptures. She understood that placing the sculptures at Tatanka was temporary, pending completion of the Dunbar.
I wonder what others think: is the judge right about the meaning of the word “elsewhere” in Costner’s letter? If not, is Detmers or Costner right about how to interpret Costner’s language about selling the sculptures.
Andrea Cook & Andy Damgaar