State and Federal Statutes Come to Artists’ Rescue

It might come as a surprise, but even artists are protected from unreasonable searches and seizure.

And so here we have San Diego County’s upwardly mobile city of Carlsbad embroiled in another of those impassioned battles over public art, a battle that seems to bubble up as predictably as politicians on the hustle in an election year. When it comes to art, we all know what we like.

The city, through the work of its energetic arts commission, had assigned New York artist Andrea Blum to design a 7,500-square-foot park above the Pacific, but some folks took exception to the two, eight-feet-high galvanized fences that defined the “Split Pavilion.” As the five-year project neared completion, they started a campaign to “Remove the Bars,” crowded into meetings where one protest leader came dressed in a gorilla suit seemingly appropriate for monkey bars, while some threatened removing city officials if the “bars” weren’t removed.

At last glance, “Pavilion” still stands. So, too, its opponents as the city seeks legal relief and respite and the artist examines her legal protections. This week a five-member committee was formed to meet with Blum to discuss possible changes in her work and will try to find an answer within 45 days.

Carlsbad might have saved itself a lot of trouble if it had looked north first.

A little over two years ago, the equally upwardly mobile California town of Concord was caught up in a similar battle. The city of 112,000 had commissioned New York artist Gary Rieveschl (what is it with these New York artists?) to design a series of 91 aluminum sculptures, “Spirit Poles,” for its civic center.

Some locals didn’t like what they saw, started calling the downtown collection of polished poles the “Porcupine Plaza,” then voted out three council members. Others in Concord inelegantly advocated tearing the whole thing down.

But the aluminum poles still stand. Standing, too, is a pioneering state statute, one that protects artistic work from destruction, alteration or removal without the approval of the artist. And by doing this it also protects a precious intangible, the reputation, good name and value of the artist. In Concord’s case, it also saved the city from further embarrassment. The only thing that changed there were the faces in the council chambers.

Recently this right of artists to maintain the integrity of their work has been strengthened even more, this time on the federal level. A new, relatively unknown and untested federal law--the Visual Rights Act of 1990, which went into effect only last June--has come into play. It joins and may largely supersede an older California law, the California Art Preservation Act.

To some people, artists’ rights end when the check clears. Like buying a car or a house, the buyer owns the painting or the sculpture, can change it, customize it or toss it out and demolish it.

That practice is called property rights.

But a painting or a sculpture is something other than a four-wheel-drive truck or a house add-on. There are no limited warranties with art, just the legal warranty that it should not be changed, moved, removed or destroyed without the artist’s approval. Destroying or changing an artwork has an impact beyond the work itself, affecting the standing and reputation (the “principal assets” of artists, says one advocate) and livelihood of the artist.

That concept is called moral rights.

In the late ‘70s, then-state Sen. Alan Sieroty of Los Angeles was looking for an issue that would point up the need to protect the work, the economic rights and the good names of artists. He found it at the Watts Towers, a crumbling personal monument built by the reclusive and then departed Simon Rodia in South Los Angeles. The city wanted to junk the towers. Others campaigned to preserve the structure’s integrity. Sieroty, working with art advocates and Golden Gate Law School professor Tom Goetzel, fashioned a work of their own, the first state law in the nation prohibiting unauthorized changes in art pieces, specifically “original painting, sculpture, or drawing . . . of recognized quality. . . .”

A few other states followed. And last June, Sen. Edward M. Kennedy’s Visual Rights Act--after extensive congressional hearings and last-minute passage--applied most of California’s protections uniformly to the states and gave interstate commerce protection to certain works of art.

The federal law has yet to be tested. The conflict in Carlsbad, where a number of citizens vigorously oppose the finished work even though the community earlier approved the project now in place, might become an early test of the federal law. Like the Sieroty bill, it protects artworks from being altered without artist approval, preventing “any intentional distortion, mutilation or other modification” which would affect the “honor or reputation” of the artist.

In Concord, when sculptor Rieveschl sought protection under the Sieroty bill and threatened a suit against the city, the tides of outrage eventually ebbed. A state review of the law said Concord could not change or remove the civic sculptures without permission of the artist. After all the hassle, Rieveschl picked up another commission in Antioch, 10 miles away. “Life goes on,” says Holly Holmes, Concord’s supervisor of public arts programs. “It’s only art after all. The artist had an iron-clad contract and some people didn’t check the laws.”

In Los Angeles, when city inspectors planned to remove a David Hockney painting at the bottom of the Hollywood Roosevelt hotel pool, the state law helped call off the underwater overpainters.

Last year, the same law was invoked when a group of Los Angeles artists successfully sued Shell Oil over the unauthorized destruction of a mural on an Eastside garage wall.

Conflicts, uncertainties and unhappiness over artworks have histories as long as art itself. Goetzel points out that many European and American works, especially public works, received verbal and physical abuse and derision when they went into place. The Statue of Liberty, he points out, had its vocal share of second-guessers.

New works often get no respect.

But reason can rule.

“It’s a question of paternity,” says Sieroty, who is retired from the Senate. “How can an artist claim a work that bears his or her name after it is altered? What happens to the reputation of the artist? Getting my original law passed was not easy. Property rights certainly are important so we had to define what would be protected and then left it up to the courts to refine any conflicts.”

Lawyers handling moral rights art cases in this state generally win their arguments because of the Sieroty bill, also called California Civil Code 987. Under the Kennedy law, two lines of protection are provided under federal copyright provisions:

* The right of integrity. This prevents “the intentional distortion, mutilation or modification of a work of visual art that is prejudicial to the artist’s honor or reputation,” wrote lawyer Charles Ossola in a review of the law.

* And the right to stop destruction of the work itself.

Curiously, the most common form of artistic work that suffers alteration and mutilation--motion pictures--was not covered in the state and federal laws, and was most particularly excluded in the Kennedy legislation.

The practice of colorizing black-and-white movies, or changing film configuration for television or home video, or making drastic changes after the director has left his final cut in the editing room, is not covered.

You have to start your protective measures somewhere, the lawmakers reasoned.

And movie studios, with their huge economic clout and large audiences and corps of lobbyists, weren’t the lions that needed first taming. Applying good-name protection to Hollywood “might conflict with the distribution and marketing of these works,” concluded the House Judiciary Committee’s report on the bill.

Studio property rights were spared.

The art of practical politics won out.

But while the Sieroty bill led to the Kennedy bill, Kennedy will lead eventually to federal courtrooms and judicial decisions, and beyond that conceivably Kennedy may lead to laws that expand protection to other artists, other arenas.

In our time, perhaps even moral rights for moviemakers.

Then watch the market in Hollywood gorilla suits boom.