The sculpture is almost 12 feet high.
Markovitz moved into the lakefront home next to his ex-wife and spent thousands on the art piece. What is interesting is that Markovitz is reported as saying that he is mad at the man who lived next door for having an affair with his ex-wife who also lives next door.
The case raises an interesting question of an aesthetic nuisance. Generally, such nuisances are rejected by the courts. Likewise, since we do not follow the English rule of “Ancient Lights,” we do not generally enforce a right to sunlight or views. However, the courts will enjoin “spite fences” or obstructions that are put up out of anger or malice. Here Markovitz has gone out of his way to confirm malice. However, this is an art piece and does not materially obstruct a view or sunlight with a fence or a wall. It clearly conveys an obscene gesture but it is also an artistic expression. Use of an obscenity statute would raise serious constitutional, free speech issues.
In Michigan, a private nuisance can be maintained if the plaintiffs can show a nontresspassory invasion of another’s interest in the private use and enjoyment of land if: “(1) the other has property rights and privileges attached to the use or enjoyment interfered with; (2) the invasion resulted in significant harm; (3) the actor’s conduct was the legal cause of the invasion; and (4) the invasion was either intentional and unreasonable or unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultra hazardous conduct.” See Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich. App. 186, 193; 540 N.W.2d 297 (1995). This still requires a showing of significant harm resulting from the defendant’s unreasonable interference with the use or enjoyment of the property. Adams v Cleveland-Cliffs Iron Co, 237 Mich. App. 51, 67; 602 N.W.2d 215 (1999).
Markovitz would seem to have the better argument though his public statements could make it a closer case.