Return to Technical Information
by Richard Solomon
(Published originally in the MCLA Newsletter, v. 6, ns. 3,4, 1995)
Most readers are familiar with the painting over of Kent Twitchell's "Old Lady of the Freeway" adjacent to the Hollywood Freeway in 1986. That disastrous event led to the formation of MCLA, and a heightened awareness of the importance of public art. What law governs such an act today? Similarly, are there any legal protections for a mural on a building slated for demolition or alteration? What about the initial question of selection; that is, can a commercial property owner, public or private, who is soliciting bids for a work of public art, or who rents out billboard space to advertisers, reject an artist's proposal because of the artist's "politics" or the "controversial" nature of the proposed work?
This is the first in a series on the law and mural art. This first article summarizes legal protections for the "moral rights" of mural artists; the next will discuss several recent lawsuits involving the "politics" of pubic art. Both topics provide useful insights into the complicated relationship between public art and its social setting.
The law regarding murals is a curious blend of public policy and pnvate contract. On the public policy side, Europeans long recognized four important moral rights of artists. Moral rights are distinct from economic rights (which are protected, if at all, by copyright and private contractual agreements) and have four components:
· The right of disclosure, or the right to determine whether to release a work of art to the public;
· The right of retraction, or the right to withdraw a work of art from the public arena (assuming the artist has retained economic ownership of the work);
· The right of integrity, or the right to not have one's work destroyed or modified; and
· The right of attribution, or the right to be known as the creator of the work (and, correspondingly, the right of nonattribution or disavowal of the work).
The earliest European expression of these rights was in the 1886 Berne Convention for the Protection of literary and Artistic Works. It's concept of moral rights as expressed in article 6b is: "Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."
We have been slow to adopt this concept into American law, but it has happened in a limited way. In 1982, California adopted the Art Preservation Act, and Congress responded on a federal level in 1990 with the Visual Artists Rights Act. What follows is a brief summary of the California law (and the federal statute where it differs), and discussion of the extent it incorporates the full range of arists' moral rights.
The California Act was motivated by the Legislature's declaration "that the physical alteration or destruction of fine art, which is an expression of the artist's personality, is detrimental to the artist's reputation, and artists therefore have an interest in protecting their works of fine art against any alteraion or destruction; and that there is also a public interest in preserving the integrity of culture and artistic creations."-Calif. Civil Code S987(a).
The California Act covers "fine art," which is described as "an original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser."--Calif. Civil Code S987(b)(2). A California appellate court has ruled that this definition applies to murals.
The "of recognized quality" requirement is interesting; it was intended to distinguish between works genuinely deserving of protection, on the one hand, and graffiti or amateur works, on the other. If a dispute gets to court, the judge must "rely on the opinions of artists, art dealers, collectors of fine art, curators of art museums, and other persons involved with the creation or marketing of fine arts to resolve the issue-Calif. Civil Code S987(f). The "commercial use" exception is narrowly defined, fortunately, to include ''fine art created under a work-for-hire arrangement for use in advertising, magazines, newspapers, or other print and electronic media." Therefore, a mural painted on the side of a structure for a fee is not deemed "commercial use."
The federal law, on the other hand, does not cover "any work made for hire."--17 U.S.C. Sl01(B). This is broader language and raises the dilemma of whether it supersedes or preempts the narrower California rule. The federal statute is not clear on this point. The California and federal schemes also differ on how long the protections lasts. Under California law, the rights exist until the 50th anniversary of the artists' death, Calif. Civil Code S987(g). Under the federal law, however, the rights protected end upon the artist's death, but this limited provision does not preempt the more generous California statute.
In addition, the Act does not address the right of disclosure, although this is a moot point with muralists. Nor does the Act cover the right of retracion. This may be understandable given the legislature's predominant concern with preserving works of art, and the historical fact that the Act stemmed from the threatened destruction of a David Hockney mural in a swinuning pool at a major Hollywood hotel. The right of redaction may, however, interest a muralist who wishes to remove his or her mural from a wall. Given the State and federal laws' muteness on the subject, what if the artist wishes to remove the work at some point?
The typical agreement between a muralist and building owner for a commissioned work assigns legal title or ownership of the mural to the owner. lf there is no such contract provision, however, and the artist wishes to remove the work, the California Art Preservation Act (Civil Code S9X7) does not explicitly cover this situation. The federal Visual Artists Rights Act does not cover it either. A muralist might try to remove their mural, but it is difficult to predict with any certainty how a judge might rule on a dispute if it became the subject of a lawsuit. Therefore, to avoid uncertainty, the subject should be covered in a written agreement between the owner of the property and the artist.
The right of integrity is the primary focus of both the California and federal laws, and brings us back to the Lady of the Freeway story. In brief, both state the following rules:
· If the owner wishes to alter or tear down the structure on which the artwork has been placed, they must contact and allow the artist to remove it at the artist's expense. No time is specified, but since federal law allows the artist 90 days within which to remove the mural, presumably a California court would allow the same 90 days. A written agreement between the artist and building owner is not required.
· If the mural cannot be removed without damage, the owner can proceed to destroy it without notice to the artist, unless the artist has reserved the right to be notified and to try to remove the mural. This agreement must be in writing, signed by both parties, and recorded with the local County Recorder's office. If the artist reserves these rights, the owner must make a good faith attempt to notify the artist or the artist's heirs. The federal law does not require recording the agreement; this raises the same preemption problem discussed above regarding "commercial use."
Obviously, there are two crucial aspects to preserving the right of integrity. The first is the technical question of whether the mural can be removed from the surface. Muralists who want to preserve future removal as an option should only use surface preparation methods and materials which allow the mural to be removed intact; and the method and materials used for each mural should be documented. The second important aspect is a written agreement between the artist and structure owner that spells out, among other important terms, the artist's right to notice and removal should the building/structure ever be demolished or altered. Unless otherwise provided in the agreement, the artist would have to pay to remove the mural. Thus, assuming the Lady of the Freeway mural could have been removed without damage, the owner was obligated to notify Twitchell that he intended to paint it over and give him at least 90 days to remove it. Even if it could not have been removed without some damage, Twitchell would still have had the right to remove it, although, again, at his own expense, if he had reserved the right to notice and removal in a signed and recorded agreement.
You can see that the provisions work a compromise between the publics' competing interests: if the building owner had to pay for the cost of removing a mural, the legislature feared that fewer owners would commission public art. A building could, of course, be destroyed many years after completion of a mural. If a muralist wants to preserve his or her moral right of integrity in the work, the owner must be kept advised of the artist's whereabouts. The parties should put their addresses where notices are to be sent in the agreement, and muralists are advised to send change of address notices to owners whenever they move, preferably by certified mail, return receipt requested.
The federal law sets up an alternative notice scheme; it authorizes the Register of Copyrights to set up a notice system--the artist may (it is not mandatory) "record his identity and address with the Copyright Office," and notice to that address is presumed to be adequate. This may be a good system to use; if the muralist keeps the Copyright Office advised of each change of address, the owner must use that address. Finally, the right of attribution (and non-attribution) is specifically protected by both California and federal law. The California provision states, "The artist shall retain at all times the right to claim authorship, or, for a just and valid reason, to disclaim authorship of his or her work of fine art."-Civil Code S987(d). The federal provision is a bit more complex: the artist has the right "to claim authorship . . .; to prevent the use of his or her name as the author of any work of visual art which he or she did not create; [and] the right to prevent the use of his or her name as the author of the work of visual art in the event of distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation...."--17 U.S.C.S106A(a)(1) and (2). Again, this somewhat different language could lead to different results on the facts of a specific dispute.
Although somewhat confusing, the recognition of artists' moral rights in their work is a significant step forward in our cultural development. It acknowledges that art is an aspect of its creator's personality, and that artists continue to have an interest in their work even after it is sold in the marketplace. Indeed, the recognition of moral rights is premised on values completely apart from the marketplace, a notion which makes them all the more precious in the current age.