‘Unconditional Surrender’ moving permanently to location between O’Leary’s Tiki Bar & Grill and Marina Jack in Bayfront Park

City Commissioner Ahearn-Koch only member of board to oppose the decision

This image shows how Unconditional Surrender will look when it is placed between O’Leary’s Tiki Bar & Grill and Marina Jack, at Bayfront Park. Image courtesy City of Sarasota

On a 4-1 vote this week, the newly configured Sarasota City Commission approved the relocation of the Unconditional Surrender statue to a Bayfront Park spot between O’Leary’s Tiki Bar & Grill and Marina Jack.

The board members also voted 4-1 to allow city staff to use up to $45,000 in the city’s Public Art Fund for the move, at the request of David Smith, manager of long-range planning for the city.

Commissioner Liz Alpert made both motions, with new Vice Mayor Erik “E” Arroyo seconding them.

Referring to the conflicting community views regarding the statue, Arroyo said, “Art is not supposed to always convey a happy feeling.

“Art evokes emotion, one way or the other,” Commissioner Kyle Scott Battie added.

The dissenting vote came from Commissioner Jen Ahearn-Koch, who also protested that new Mayor Hagen Brody had not allowed her to ask all the questions she had prepared.

Ahearn-Koch told her colleagues that, if the statue were to be moved to one of the nine sites provided in a city survey conducted this fall, she would prefer it stand in front of the Sahib Shriners building located at 600 N. Beneva Road. That was the fiscally prudent option, she pointed out, as the Shriners had offered to pay for the move and upkeep of Unconditional Surrender.

The Sahib Shriners building (marked by the red balloon) is located at 600 Beneva Road in Sarasota, near Bobby Jones Golf Club, part of which will become a public park. Image from Google Maps

During the commission meeting, William “Gary” Fields, representing the Sahib Shriners, pointed out, “Our members have served in every war since World War I.” Six of the current members, he added, are survivors of World War II. “My members are excited,” he said, about the prospect of having the statue in front of their building on a temporary basis.

Fields also noted, “We’re going to help you raise the money to bring it to us,” as well as raise funds to maintain it.

Moreover, he said, the Shriners have 200 parking spaces at the Beneva Road site, along with restrooms and “plenty of lighting” to facilitate visits of the public to Unconditional Surrender.

Mayor Hagen Brody told his colleagues that he preferred seeing the statue moved to what city staff had dubbed “Option 2” in a the public survey. That site is the center of a circular drive at the entrance to Bayfront Park. That would be in keeping with the city’s policy to put sculptures in the centers of every roundabout, Brody added.

In that spot, he continued, people could see Unconditional Surrender from U.S. 41 and from Sarasota Bay.

This graphic illustrates how Unconditional Surrender would look in the center of the roundabout at the entrance to Bayfront Park. Image courtesy City of Sarasota

However, he said he could accept the site between O’Leary’s and Marina Jack, which was dubbed Option 1.

While she is a fan of artwork in the roundabouts, Commissioner Alpert responded, she felt Option 1 would be a safer location for people who want to photograph the statue.

Vice Mayor Arroyo agreed with Alpert about the roundabout site. “It’s a high-traffic area, and I wouldn’t want people crowding in … and taking pictures [there].”

“The statue belongs to the community,” Brody said before the vote, “and the community, in my mind, has really spoken.”

He noted “hundreds of contacts and opinions voiced on this. … Thousands of people feel very passionately about this.”

The statue had to be moved from its bayfront site to make way for a roundabout that the Florida Department of Transportation plans to construct at the intersection of U.S. 41 and Gulfstream Avenue. That prompted City Commission and city staff discussions that led to the Nov. 16 decision.

Contrasting views of the public

The 4-1 vote followed remarks by 15 people, including Fields of the Shriners.

As in past discussions of Unconditional Surrender, proponents of its remaining on the bayfront outnumbered those in opposition to that idea.

Venice resident Barbara Vaughn pointed out to the commissioners, “This statue, unlike a lot of art in Sarasota, is real. It doesn’t need an explanation.”

Barbara Vaughn addresses the commissioners on Nov. 16. News Leader image

Altogether, she continued, about 50,000 military veterans live in the county. Unconditional Surrender, Vaughn said, “represents the greatest event in our country’s history, and people come here and appreciate it and they enjoy it.”

She was referring to the statue’s having been modeled on a photo of a sailor kissing a nurse in Times Square on the day Japan announced its surrender in World War II, which is known as V-J Day.

Ellwood Schiffman added, “This symbol is a symbol of America, not a symbol of Sarasota.”
During World War II, he continued, 16 million Americans served in the military.

Moreover, Schiffman said, “Everyone knows art and beauty [are] in the eye of the beholder.” His preference, he added, would be for the statue to stand in the Option 1 spot.

City resident Jim Haberman showed the commissioners a video he had taken over three hours at Unconditional Surrender, in which numerous people could be seen looking at the statue and taking photos with it.

He had compressed the film to 3 minutes, he noted, which was the time limit for public remarks during the meeting.

“It is an undeniable fact that Unconditional Surrender draws a significant number of visitors to our area,” Haberman pointed out. Virginia Haley, president of the county’s tourism office — Visit Sarasota County — has said that 25% of all tourists to the county make a stop at Unconditional Surrender.

This still from Jim Haberman’s video shows a group taking a photo in front of the statue. Image courtesy City of Sarasota

(During the board discussion, Vice Mayor Arroyo said that when he has family members in town, they go to the bayfront for that purpose, preferring seeing the statue to a trip to Siesta Key Beach.)

Among those calling for the permanent removal of the statue from the bayfront was former Sarasota Mayor and City Commissioner Kelly Kirschner, who noted that he served on the board from 2007 to 2011.

Referencing Tom Brokaw’s best-selling book The Greatest Generation, about the men and women who served during World War II, Kirschner told the current commissioners, “I believe I did the wrong thing for what seemed like the right reasons, accepting the placement of Unconditional Surrender for a 10-year trial period [on the bayfront].”

In essence, he continued, the statue “is a pirated work, which diminished Sarasota’s stature as one of the nation’s most unique arts communities.”
The statue “does not meet the City of Sarasota’s criteria for public art,” Kirschner pointed out, as it is not an original work of art.

(Commissioner Ahearn-Koch later asked the chair of the city’s Public Art Committee, Josh Botzenhart, to comment on that issue. Botzenhart explained that the statue is a reproduction of a photo, and more than one such statue exists; the other is in San Diego. “That takes it out of the classification of original artwork,” he added. The City Code, Botzenhart pointed out, calls for each piece of art put on public display in the city to be an original.)

Kirschner also talked about the fact that Seward Johnson, the artist who created Unconditional Surrender, “refused to seek a license” from Time-Life Inc., which owned the copyright to the famous Alfred Eisenstaedt photo on which the statue was based. Instead, Kirschner said, Johnson claimed that he had based his design on a photo that was in the public domain, but that photo did not show the kissing couple below the knees.

The sexual assault issue

Kirschner was among several speakers who decried the potential for continued public display of Unconditional Surrender because it depicts a sexual assault.

City resident Kafi Benz, president of the nonprofit Friends of Seagate, told the commissioners, “For years, many mistook [the Eisenstaedt] photograph as a mutual celebration. Instead, the woman was grabbed by a drunken stranger, forced into a headlock, bent backward, off balance, into an unwelcome act that was an unequal wrestling match.”

Benz added, “The clear, nonverbal message of this statue is subjugation. It never could be explained away with an apologetic sign. Failing to remove this statue from our public space would convey to the youth viewing it in the decades ahead that this subjugation is somehow romantic, and worthy of imitation.”

This is Frame 24 of Alfred Eisenstadt’s negatives from the V-J Day celebration in Times Square. The woman can be seen trying to pull down her skirt. Image courtesy Kafi Benz

Benz has provided copies of Eisenstaedt’s contact sheets to city leaders, as, she points out, they show the woman trying to hit the sailor in self-defense and then trying to pull down her skirt, as the kissing continued.

Kelly Franklin of Sarasota stressed, “For assault survivors, [the statue is] an oversize PTSD trigger.”

“I have great respect for those who fought and served,” Franklin said; her grandfather was one of them. However, she added, “I don’t think this statue represents the best of the military. … Some things, you just can’t do; they’re morally wrong.”

Another speaker, Melanie Goddard, who also lives in the city, pointed to an interview recorded with the woman later found to have been the person the sailor kissed in Times Square, Greta Zimmer Friedman. Friedman said “she was just grabbed and overpowered,” Goddard continued. “Most telling,” Goddard said, “is that Ms. Zimmer refused, ever, to recreate the scene.”

Yet, Gerald ODonnell told the commissioners he had “a unique perspective on this matter,” having forged “a close personal friendship” with both the sailor, George Mendoza, and Friedman, who — ODonnell pointed out — was a dental assistant, not a nurse.

The sexual assault allegation, ODonnell continued, originated with a British blogger. When Friedman learned of the contention, O’Donnell said, “She categorically disputed [that]” in a March 2013 Military Times article.

Friedman maintained “it was a happy event,” ODonnell said. “There was just no way that there was anything bad about it.”

The city commissioners sit at the dais on Nov. 16, with Mayor Hagen Brody (center) and Vice Mayor Erik Arroyo (left of Brody) without face masks. City Attorney Robert Fournier is to the far right, with City Auditor and Clerk Shayla Griggs between Fournier and Arroyo. Commissioners Jen Ahearn-Koch and Kyle Scott Battie, who tested positive for COVID-19 on Nov. 6, participated in the session via Zoom. News Leader image

Later, during the board discussion, Commissioner Alpert referenced the comments about the statue depicting a sexual assault. “I think that this sculpture has to be placed in the context of the time,” Alpert said. “People did not know if fascism was going to prevail in the world.” On V-J Day, Alpert added, “The joy that [Americans] felt, we can only imagine.”

“You really have to dig deep to find some offense in this,” Vice Mayor Arroyo said.

“I personally don’t take [the sexual assault issue] lightly,” Commissioner Battie added. Still, he continued, “I think [the statue] should stay on the bayfront.”

The copyright issue

Commissioner Ahearn-Koch did ask City Attorney Robert Fournier to discuss the copyright issues that were raised in correspondence and in comments that afternoon.

Fournier spent about 10 minutes reporting on the extensive research he had undertaken on that issue. “There’s 13 federal appellate circuits,” he pointed out, and they are split in their views on copyright infringement. One group of the courts takes the view that a cause of action begins when the holder of the copyright first discovers that those rights have been violated, Fournier noted. That is called the “Discovery Rule,” he added.

The second view focuses on the “Injury Rule,” he continued. That means that no statute of limitation exists with a copyright violation.

The 11th Circuit, which handles cases in Florida, Georgia and Alabama, Fournier said, takes the Discovery Rule stance.

City Attorney Robert Fournier makes a point during a 2017 meeting. File photo

In 2006, Fournier continued, a member of the city’s Public Art Committee sent a letter to Time-Life, inquiring about the copyright issue. At that time, he added, Time-Life said it would need to license display of the statue in Sarasota. Yet, he noted, nothing ever happened.

Time-Life also sent the city correspondence in 2009, he said, as the City Commission was considering the 10-year loan of the artwork that its purchaser was offering the city.

Thus, Fournier told the board members, “I feel … a very credible argument can be made” that the statute of limitations over the copyright issue had ended. “I’m not concerned about [a lawsuit].”

“I’ve done copyright litigation,” Vice Mayor Arroyo pointed out. “In the realm of intellectual property,” he added, “copyrights don’t really fall that high. Patents are the most protected,” followed by trademarks.

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