Richard Phillips, Playboy Marfa, 2013.

Two artists' projects in Texas have run afoul of that state's Transportation Code and been deemed illegal.

This summer, the Texas Department of Transportation (DOT)  pronounced artist Richard Phillips's latest work, an outdoor roadside sculpture near Marfa, Tex., and commissioned by Playboy Enterprises, to be unlawful advertising and ordered the company to remove it. Close by is Prada Marfa (2005), a site-specific Land art project by Scandinavian artist duo Elmgreen & Dragset, which the DOT has also deemed illegal.

Phillips's Playboy Marfa (2013) comprises a 1972 Dodge Charger atop a box in front of a 40-foot-tall neon Playboy bunny logo. Texas's Transportation Code regulates outdoor advertising, which includes signage with logos. Located along a barren stretch of Highway 90, Prada Marfa is a faux-storefront emblazoned with the Prada insignia (the company's founder, Miuccia Prada, gave permission). It does no retail business and was commissioned not by Prada (although Miuccia Prada selected and donated the "historical display" of shoes and bags in the faux-store), but by the New York nonprofit Art Production Fund in collaboration with Texas nonprofit Ballroom Marfa.

Their work is not an advertisement, Elmgreen & Dragset said on Friday in a statement issued via Ballroom Marfa. The duo says it came as "a big surprise" that the department "now, after eight years, may declare this well-known artwork to be illegal" and that it "would be a shame for the local community if it disappeared . . . since the work is one of the strong points for cultural tourism, which is such an important financial factor in the region."

The artists assert that "the right definition of advertisement must be based on criteria more accurate than just including . . . a logo."

Department of Transportation spokeswoman Veronica Beyer told A.i.A. by e-mail Monday that "Prada Marfa is considered outdoor advertising." For that reason, she said, "a state outdoor advertising license and permit are required." She added, "We appreciate artwork and enjoy seeing it across our state, but like all other outdoor signs, people responsible must follow state and federal laws."

Elmgreen & Dragset, Prada Marfa, 2005.

While the department is "still looking into" the legality of Prada Marfa, according to Beyer, it took decisive action concerning the Playboy commission, issuing an order, on June 21, demanding removal within 45 days. Ace Pickens, one of the lawyers representing Playboy Enterprises, told A.i.A. by phone Monday that because the June 21 order of removal was misdirected to the landowner rather than Playboy, a new order was issued on Sept. 6, pushing back the clock.

"It's been very cordial," he said, "and I congratulate the department for attempting to find a solution to this problem." Phillips personally attended an Aug. 6 meeting with the department, at which he gave a presentation about how he designed the work and what his intentions were. The artist "politely took exception to the characterization of his work as an advertisement," Pickens said.

Pickens believes the transportation department officials involved are "relatively sympathetic to the situation," but pointed out that "if Texas doesn't enforce the Highway Beautification Act, it can lose its federal highway funds." Playboy has until Dec. 23 to remove the installation or reach an accommodation with the DOT. 

Prada Marfa
 is not currently subject to a removal order and differs from the Playboy project in important ways, according to Melissa McDonnell Luján, Ballroom Marfa's deputy director. It sits on donated land and was financed by nonprofit arts groups, unlike the Phillips work, which was paid for and is on land leased by Playboy. Doreen Remen and Yvonne Force Villareal, co-founders of Art Production Fund, put it more forcefully in a statement issued by e-mail Tuesday: "Playboy Marfa is a marketing concept," and "the antithesis" of Prada Marfa, which "is a unique and significant public art work." They added that the work's creators and producers are "devastated that the erroneous association between the two may lead to Prada Marfa's potential destruction."  Luján confirmed to A.i.A. by phone on Monday that the Texas DOT has contacted neither Ballroom Marfa nor the Art Production Fund.

Texas attorney Dick Deguerin, best known for defending (separately) former House Majority Leader Tom DeLay and Branch Davidian sect leader David Koresh, volunteered to assemble a legal team for Playboy when he learned of the removal order. "I'm a promoter of Marfa; I love the place and the attitude of freedom everyone who goes there finds," he told A.i.A. by phone. Deguerin said that "Right now it's very encouraging that the folks at the Department of Transportation recognize the artistic merit of the installation."

He called both Prada Marfa and the Playboy installation "works of art—no question about it," adding, "I don't think it matters that one was sponsored by Playboy. Art patrons of all stripes throughout history have supported artists. I am greatly in favor of making controversial art available to the public."