Murals Not ‘Fine Art,’ Court Rules : Law: Judge says the wording of the California Art Preservation Act appears not to protect such works. He encourages artists to appeal.

A Los Angeles Superior Court judge ruled Wednesday that the landmark California Art Preservation Act--enacted a decade ago to protect artworks from unauthorized alteration or destruction--is powerless to prevent demolition or painting over of murals.

But in issuing the ruling, Judge Harvey A. Schneiderman observed that there is virtually no case law to act as a road map for judges called on to adjudicate cases of mural destruction and urged artists and their lawyers to appeal.

The ruling came in a case involving Shell Oil Corp. and the owners of a Boyle Heights gasoline station who, in 1988, demolished a mural erected by East Los Streetscapers, one of Los Angeles’s most prominent muralist groups.

The mural, titled “Filling Up on Ancient Energies,” was painted on a wall adjoining the service station in 1980. Ironically, Shell Oil commissioned the work itself, paying Streetscapers a $3,500 fee, according to court documents.

Schneiderman held that, based on a review of the legislative history of the art preservation act, Sacramento lawmakers apparently left a loophole by failing to specifically identify murals as artworks that enjoy legal protection. The law cites sculpture, drawing, original work in glass and paintings--but not murals.

While the ruling--in which Schneiderman technically concluded that Shell Oil had prevailed in one aspect of an ongoing damage suit filed against it by Streetscapers (the organization is seeking about $200,000)--was narrow in its scope, artists and arts attorneys contend it could have potentially devastating consequences for arts preservation if it is upheld.

Even the tentative nature of Wednesday’s ruling prompted some arts attorneys to say they were concerned that any hiatus in the art preservation act’s power over murals brought on by higher court appeals might facilitate the demolition or painting over of additional works.

At the same time, Schneiderman made it clear he had a certain amount of discomfort with a situation that he said compelled him to rule as he did. “I look at this as an issue there is not a whole lot of guidance on,” he told lawyers in his oral decision. On reflection, he said, he found the legislative history of the art preservation law “would appear to support the conclusion that (a mural) is not a work of fine art.”

But, said Schneiderman--anticipating that artists and arts advocates will quickly appeal in an attempt to get a higher court to clarify the situation--”the Court of Appeal is going to have to resolve it (and) I invite you to go there.”

He said that while the law “seems to strike out in the direction” of leaving murals out of the definition of fine art, “it would not be a shocking surprise” for a higher court to conclude otherwise.

David Botello, one of the organizers of Streetscapers, reacted with surprise to the ruling. He and his attorneys argued that murals were intended to be covered by the art preservation law if for no other reason than that they are paintings --albeit paintings that happen to have been executed on walls.

“There are going to be a lot of artists upset,” Botello said outside the courtroom. “Does this (decision) mean that murals are not fine art? That’s ridiculous.”

In its court papers, Shell Oil argued that, not only did the art preservation act not apply to murals, but that it never occurred to the owners of the gas station that the specific mural affected was fine art that they had any legal duty to protect. The mural, about 100 feet long, took up an entire wall adjoining the gas station at Fourth and Soto streets.

When Joong Duk Cha and Song Hee Cha acquired the station in 1988, they decided to connect the property with a used-car sales lot next door. All but a small section of the mural was demolished before Streetscapers learned of the demolition.

Consuelo S. Woodhead, a volunteer attorney for California Lawyers for the Arts, said the case touches on a variety of significant issues facing mural- and arts-preservationists. California Lawyers for the Arts attempted to file a friend-of-the-court brief in the Shell Oil case, but Schneiderman said he had not received the document before Wednesday’s hearing.

Woodhead said California Lawyers will join the case on appeal. She said that, while murals may have been placed in somewhat increased immediate danger by Schneiderman’s opinion, most murals destroyed in California are demolished by property owners acting in honest ignorance that any statute may preclude them from removing murals.

She said the landmark California law, which was debated in the Legislature starting in 1977 and went into effect in 1980, was intended to require that property owners who wish to demolish or remodel buildings on which murals are painted must notify the artists involved. The law, she said, is intended to allow artists a chance to remove endangered murals--recognizing that some murals are executed in ways that make removal impossible with demolition occasionally inevitable.

Woodhead contended that the Streetscapers mural could have been taken off the gas station wall intact. Botello said the Streetscapers organization has erected about a dozen murals around the city. Only one other Streetscapers work--on Cahuenga Boulevard between Melrose Avenue and Santa Monica Boulevard--had been destroyed, Botello said. It was painted over by a building owner, he said.