Painter Going to the Mat Over Changes in Artwork for Hotel : Rights: Brian Ura is using a California law that allows a visual artist to collect damages and attorneys’ fees from someone who alters, mutilates or destroys one of his artworks.

Studio City artist Brian Ura often worked late into the night trying to get the colors just right on the seven still lifes of fruits and vegetables he was painting for a posh new San Diego-area hotel.

The $12,300 commission was the biggest ever for Ura, a struggling artist. Eagerly, he traveled to Coronado for Le Meridien Hotel’s grand opening in June, 1988. He was shocked to find his paintings covered with a dark, blotchy coating of stain or varnish that Ura said was applied so crudely that “it looked like shoe polish.”

“It was like someone had slapped me across the face. I was numb,” said Ura, 42. “The subtle color nuances were totally destroyed. I feel the paintings are not mine anymore. I’m embarrassed to have people see my name on them.”

Until 10 years ago, Ura would have had no legal recourse unless he had expressly reserved his rights in advance by contract. Even today, he would have few options in most parts of the country.

But Ura took advantage of a pioneering California law that allows a visual artist to collect damages and attorneys’ fees from someone who alters, mutilates or destroys one of his original artworks--even if the artist no longer owns it.

Ura filed a lawsuit in Los Angeles Superior Court last July seeking $1 million in actual and punitive damages from Neal Menzies, the art consultant who hired him to do the paintings; the hotel’s art designer, Cynthia Forchielli and her company, Intra Designs and the framer, Jerry Solomon, all of Los Angeles.

Forchielli and Solomon did not return several phone calls from The Times. Menzies’ attorney, Jonathan Chodos, said his client had nothing to do with the alterations and called Ura’s lawsuit “totally without legal and moral justification.”

The hotel was dropped from the lawsuit after Ura’s attorney, Jeffrey Karpel, concluded that hotel officials did not authorize or know about the changes to the paintings, which still hang in the hotel restaurant. The paintings apparently had been considered too bright for the restaurant’s subdued atmosphere.

The 10-year-old California law on which Ura based his lawsuit, the California Art Preservation Act, is the first of its kind in the nation. Authored by former State Sen. Alan Sieroty (D-Los Angeles), it prohibits unauthorized changes to works of “fine art,” which the law defines as “original paintings, sculptures, drawings or artworks in glass.” The law does not protect artwork created for commercial uses in “advertising, magazines, newspapers or other print and electronic media.”

The law is based on the doctrine of droit moral, or moral right , which holds that a work of art is an expression of the artist’s creative personality, giving the artist an interest in his art even after its sale.

“If you were an artist who had invested five years of your life in creating something that you thought was extraordinarily wonderful but because the only way artists can live is to sell their work, you had to part with it, how would you feel about someone destroying it?,” asked Stephen E. Weil, deputy director of the Hirshhorn Museum, the modern art branch of the Smithsonian Institution in Washington and co-author of two books on art law.

An artist’s reputation depends on his artwork; if it is destroyed, he can’t use it to attract potential clients, mount it in a retrospective show of his works, or reproduce it in exercise of his copyrights, said La Jolla arts lawyer Peter Karlen, who perhaps has handled more artists rights cases than any other lawyer in the state.

The doctrine also holds that changing or destroying original works of art deprives the public of a part of its culture, said Greg Victoroff, co-chairman of the Beverly Hills Bar Assn.’s Committee for the Arts. The doctrine says that original artworks need special protection because they are unique and irreplaceable.

“Records and books are virtually indestructible because they exist in multiples,” Weil said. “You could not destroy Beethoven’s Fifth Symphony no matter how hard you tried. But destroy a work of art and it’s gone forever.”

The doctrine originated around the turn of the century in France. The concept is alien to American precepts of property rights, which generally permit people to do whatever they want with what they own, experts said.

There was no legal recourse, therefore, for artist Alfred D. Crimi, who devoted years of painstaking work to a large fresco commissioned for a wall of Rutgers Presbyterian Church in New York City. In 1946, eight years after he finished it, the congregation’s leaders decided that Christ’s bare chest looked too worldly and, without consulting Crimi, painted over the fresco.

Devastated, the artist unsuccessfully sued seeking to have the paint removed or the fresco detached and given to him.

Alexander Calder also was frustrated by the lack of moral rights protections after a private collector donated his mobile “Pittsburgh,” to that city’s municipal airport in 1958. Without Calder’s permission, the city repainted the black and white mobile in the county colors, green and gold, and motorized it to turn steadily.

Calder spent the last 18 years of his life trying to get the mobile restored to its original state. It was finally done after his death.

The late artist Isamu Noguchi realized he might as well not even bother to sue when a New York branch of the Bank of Tokyo decided to remove his sculpture “Shinto” from its lobby in 1980. Customers had complained that the 1,600-pound sculpture of a 17-foot-long rhomboid hanging point-downward, suspended by steel cables, was like a big guillotine poised overhead.

Because it wouldn’t fit through the doors or windows, the sculpture was cut into pieces and stuck in a warehouse. The artist called it vandalism but had no legal recourse.

Today, artists’ moral rights are recognized in more than 70 countries, including almost all of Western Europe except the Communist bloc, and parts of Latin America and Africa. Great Britain last year enacted moral rights legislation for the first time.

Moral rights still are not recognized in the United States, with the exception of California and nine other states--Louisiana, Massachusetts, Maine, New York, New Jersey, Pennsylvania, Rhode Island, New Mexico and Connecticut--that followed California’s lead by passing various forms of moral rights legislation. Artists occasionally have used legal arguments rooted in libel, defamation and unfair trade practice law to protect their artistic rights.

Although the United States last year became one of 89 nations to sign the Berne Convention on international copyright law, which contains artists’ moral rights protections, those protections are largely symbolic, Weil said.

Meanwhile, Sen. Edward Kennedy, (D-Mass.) has introduced national moral rights legislation and a similar bill has been introduced in the House. Hearings have been held and the bills are in committee.

The California law, like most in this country, protects only works of “recognized quality,” a proviso designed in part to make sure a doting mother doesn’t sue her child’s kindergarten teacher for throwing out her child’s finger-painting, Weil said.

The subjective decision of what constitutes quality is to be determined by the trial court after testimony from dealers, gallery owners, art historians, museum curators and other art experts. Under the law, an artist can insist that his name be put on or taken off his artwork, said Edward J. Damich, associate professor at George Mason University School of Law in Virginia.

The California law also allows the awarding of punitive damages, not to the artist, but to a nonprofit arts organization selected by the court. The law also permits an artist or nonprofit arts organization acting on the public’s behalf to seek an injunction to prevent damage to an artwork.

The law extends rights to artists and their heirs only for 50 years beyond the life of the artist, meaning privately owned paintings by the Old Masters can be altered with impunity. In addition, you can buy a work of fine art in California, move to one of the 40 states without moral rights laws, and do whatever you want with it.

“You can still play darts with your Rembrandt,” Weil said. “You can take your painting to Wyoming and destroy the hell out of it to your heart’s content.”

Even in those 10 states with laws, permissible conduct varies widely. New York, for instance, allows a work to be altered if it isn’t publicly displayed, said Damich. Thus, you can mutilate a painting in New York and show it in California without violating either state’s moral rights laws.

Theoretically the laws of some states could even affect the average citizen who tires of a painting and throws it out. But experts say even in the unlikely event the artist sued, the work would have to be “of recognized quality” for the artist to recover damages.

It is impossible to say how many lawsuits have been brought under the California act. Most cases are settled out of court, in part because it is usually easy to prove an artwork was destroyed intentionally and it is not worth the expense of a protracted legal battle, Karlen said. Settlements generally run between seven and 10 times the artwork’s original purchase price, he added.

The only California case that has been reviewed at the appellate court level was an unsuccessful attempt by an architect to seek the act’s protections, experts said.

Some of the California cases support a stereotypical notion of California as the home of the bizarre and eccentric. For instance, in the early 1980s, a Los Angeles art dealer got it into his head that some bronze sculptures of nudes in strange contorted postures in his gallery were evil. The dealer staged an artistic exorcism of sorts in which he and his friends danced around the sculptures, etching crosses into them. The artist contemplated suing but didn’t have to; the gallery owner voluntarily paid for the damage, Karlen said.

Another San Diego artist sued under the moral rights law after his ex-girlfriend took a painting he had given her before their relationship soured, ripped it up, scribbled profanities on the pieces and mailed it to him. He received a small judgment, Karlen said.

In another case in the 1980s, an artist sued and received an out of court settlement from a collector who removed 50 dollar bills from the artist’s avant-garde conceptual painting and, apparently, spent them, said Karlen.

Although artists have also used the law to recover damages for mutilated murals, it’s still a gray area that experts say will undoubtedly be decided upon by the appellate courts.

Los Angeles Superior Court Judge Harvey A. Schneider ruled last month that the state law does not protect murals because the law does not specify murals as works of fine art. But Schneider urged the muralists to appeal the ruling, which came in a case involving a mural commissioned by Shell Oil Co. for a wall adjoining a Boyle Heights gas station that later was remodeled by new owners.

French moral rights go much farther than those in the United States, giving an artist the right to decide whether a work of art shall be made public, the right to remain anonymous or use a pseudonym and the right to receive royalties when the work is resold. (California is the only state in this country to allow royalties. The controversial Resale Royalties Act, also authored by Sieroty and passed in 1977, requires payment of a 5% royalty fee to an artist whose work is resold for more than $1,000 profit.)

Whereas moral rights exist only in the visual arts in this country, the French recognize it in all artistic forms--including architecture. For instance, poet Paul Claudell was able to prevent his play from being performed with one act omitted in France, whereas playwright Samuel Beckett had no legal recourse to stop a production in Boston four years ago that he said misrepresented one of his works, Weil said.

France gives moral rights protections to a film’s screenwriters, directors and composers after the final print is released, which has been used in France to prevent the showing of colorized films. Currently, the issue of colorizing films is on appeal with the French Supreme Court. When “The Asphalt Jungle” was broadcast on TV in a test case, it was shown in color and in black and white. Legal attempts to prevent the showing of colorized films in this country have failed, Damich said.

The moral rights laws of Massachusetts and New Mexico extend to motion pictures in limited cases.

The French even allow an artist the right to buy back a work if the artist decides it no longer represents him, Weil said. For instance, Anatole France in 1882 sold a historical book to a publisher who waited 25 years--until France was famous--to publish it. France sued and was able to prevent publication by reimbursing the publisher for the cost of his contract, Karlen said.

Meanwhile, back in Studio City, Ura said the lawsuit has taken time and energy from his artwork and may also have hurt him professionally. It’s something the artist, who rolls up the living room carpet of his tiny rented home for studio space, can ill afford.

He thinks at least one gallery has dropped his work because of the suit. His earnings have dropped and his girlfriend is supporting him, he said. But he said he felt he had an obligation to sue.

“I know that what they did was illegal but above that, it was immoral,” said Ura, a 1971 honors graduate of the San Francisco Art Institute who prides himself on his skill with color. Not to do anything “would have been contributing to the wrongness of it,” he said.

But Chodos said his client and the others had the right to change Ura’s work because “he was simply doing a painting to their specifications. It was not a creative work on his part. It’s as if they told him, ‘Could you come in and paint my car?’ ”