And if Work of ‘Recognizable Quality’ Gets Painted Over?

In establishing a program allowing “aerosol art” to be spray painted on a seaside retaining wall, city officials apparently didn’t realize that they might be opening a Pandora’s box of potential lawsuits.

Now aware of the possibility, they say they will do whatever is possible to avoid problems.

In the spirit of hip-hop culture, from which aerosol art emerged, all paintings on the seawall were intended to be temporary, and it has been assumed that participants in the month-old program understood that their work sooner or later would be painted over by the next guy.

But the city may be “exposed to liability” because new state and federal laws hold that if a mural is of “recognizable quality,” the artist must be notified before it is removed or altered, according to Amy L. Neiman, a Los Angeles lawyer. Neiman recently successfully sought a court ruling that murals, like other artworks, are protected under the California Art Preservation Act.

No complaints have been filed by those whose work has been painted over in Huntington Beach--so far.

But Neiman, who represented a Los Angeles mural group called the East Los Streetscapers in the case, said in a recent phone interview that some art experts deem aerosol art to be of “recognizable quality” and that a case against the city could therefore be made.

Neiman noted that although the state actually owns the beach wall, the city could be liable because it administers the outdoor art program.

Participants in the program do sign waivers releasing the city from “any liability for damages or claims for damages for personal injury . . . as well as claims for property damage.” Neiman said that may be sufficient protection under the state law.

But it may be insufficient when applied to the federal Visual Artists Rights Act, Neiman said. That law holds that a waiver must state explicitly the kind of art being created and the responsibilities being waived, so that in this case, she said, it would have to include such words as “aerosol art” and would have to specify that the work is temporary.

Ron Hagan, Community Services Department director for the city of Huntington Beach, said he believes that the waiver, part of the application for a painting permit, protects the city. But he also said he wants to read the state and federal laws and that he will attempt to “modify” the waiver if it is not consistent with both.