A coverup? Not so fast

One mural was a six-story portrait of an artist, painted on the side of a Job Corps training center in downtown Los Angeles. The other was a colorful explosion of faces and figures stripped around a one-story Silver Lake furniture store.

What these two works by Los Angeles muralists have in common is that they are gone -- painted over recently within days of each other.

Both artists say they keenly feel the loss, but their circumstances differ in a key aspect that may have legal ramifications: One was given notice in January that his work would be painted over; the other, by all accounts, received not one word.

Kent Twitchell’s “Ed Ruscha Monument,” a portrait of fellow artist Ruscha that took Twitchell nine years to complete, was covered with beige paint two weeks ago without apparent warning to the artist.

At the time the painting took place, the facade of the building at 1031 S. Hill St. was undergoing repairs.

The U.S. Department of Labor, which oversees the Job Corps and the federal government-owned property, has declined to comment, except for a statement issued by spokesman David James: “The L.A. Job Corps Center’s first concern is the safety of Job Corps students and staff. For that reason, they made the decision to repair a potential safety hazard posed by the condition of the building facade. We are in the process of assessing how the repair was handled in light of these concerns.” A few days earlier and with virtually no media attention, Ricardo Mendoza’s untitled work at 3531 W. Sunset Blvd. was given a coat of brown paint at the behest of the building’s tenant, Living Room. The furniture store had moved three months ago into what had earlier been the field offices of L.A. City Councilman Eric Garcetti.

The owners of the shop, Steve and Alisa Melendrez, say the mural did not match their merchandise and that patrons didn’t realize a new business had moved in because the building still looked the same. Mendoza calls it “hurtful” to see his mural obscured from public view. He adds that he did not have the money to pay for its removal from the wall -- which is possible with proper conservation techniques.

But because he had sufficient notice, the artist pulled together a group of supporters. They included staffers of state Assemblywoman Jackie Goldberg (D-Los Angeles), who once had occupied the building as a City Council member, and Garcetti, as well as the nonprofit Hollywood Beautification Team. With the cooperation of the tenant, they brought in conservationist Nathan Zackheim to oversee having the mural coated with a substance that preserves the artwork under the paint.

“It’s sort of in hibernation,” Mendoza says of his mural. “It’s beautiful the way the parties came together to preserve it. In some way, it’s still under there.”

In fact, Mendoza says, he has an agreement with the current tenants that they will try to uncover the mural in 10 years.

No such preservation efforts were apparently made with the Twitchell mural.

Pat Gomez, a public art manager for the Los Angeles Department of Cultural Affairs, confirms through a spokesman that she received a call Oct. 13, 2005, from John Frawley, director of administration for the Los Angeles Job Corps Center, asking whether there were any city laws that would prevent the Job Corps from removing the mural.

Gomez says she told Frawley that under federal and California state law the owner of the building was required to give Twitchell 90 days notice before damaging the mural. Gomez says she invited Frawley to call back when notification would be needed and told him Cultural Affairs would help him contact Twitchell. Frawley never called back, Gomez says.

Frawley referred a call for comment to the Labor Department.

Pasadena attorney Les Weinstein, who represents Twitchell, says he is preparing for legal action, although no complaint or lawsuit has been filed.

It wouldn’t be the first legal case for Twitchell: His 1974 mural, “Old Lady of the Freeway,” situated alongside the 101, was painted out by a billboard company in 1986, leading to a lawsuit that resulted in a settlement of $175,000 -- $125,000 for Twitchell to restore the mural and $50,000 to cover attorney’s fees.

At issue with “Ed Ruscha Monument” are the same laws that served to protect Mendoza’s mural: the Visual Artists Rights Act (or VARA), a federal law effective in 1991 that requires that an artist be given notice if his or her artwork will be altered or destroyed, and the California Art Preservation Act of 1980, which holds similar requirements. In both cases, the artist has 90 days to remove the work at his or her own expense, or come to an agreement with the building’s owner to preserve it by other means. New York attorney Donn Zaretsky, whose practice includes art law, says cases similar to the Twitchell situation, in which a public artwork was destroyed without artist consent, are relatively rare -- in the “double digits.”

“It is such an unusual thing for someone to do it without any notice at all,” Zaretsky adds. “Usually the owner wants to cover it up to put up advertising or something.”

Artists’ rights attorneys say artists usually settle out of court. Still, the relatively new Visual Artists Rights Act has played a role in at least a few recent legal cases nationwide.

In 2002, heirs of late artist Jesus Campusano, and his co-artist, Elias Rocha, won a settlement when their 46-foot-square mural on a San Francisco building was obscured by a white protective sealant during repairs to the structure. The matter became known as the Lilli Ann case, named for the building’s owner at the time the mural was painted.

Another high-profile San Francisco case involved artist Garth Benton, who sued philanthropists Ann and Gordon Getty when a Benton mural at their home was painted over. The Gettys settled with a payment to the artist.

Southwestern Law School professor Robert Lind, an art law specialist, says the 90-day notice is waived only if the artist has signed over the rights to his work to another party, such as the building’s owner, or is commissioned and paid to create the mural or other art as “work for hire.”

Lind says Twitchell’s situation will be most affected by whether he was given proper notification, and whether he ever signed away his rights.

The artist and his attorney say “no” on both counts. “There are no written agreements -- none between Kent and Ruscha, none between Kent and the Job Corps, none between him and the Labor Department,” Weinstein says.

According to property records, the U.S. government acquired the then-vacant building on Hill Street in 1978 for use by the Job Corps. In that same year, Twitchell says, he was contacted by the local Job Corps office and asked if he would create a mural for the building.

“I loved that wall, so I was delighted to be serendipitously invited,” Twitchell says.

Although he was invited to paint the mural by the Job Corps, Twitchell says the organization did not pay him for the work; rather, he used funds from grants he had received from the CETA public art program, the National Endowment for the Arts, and the Los Angeles Department of Cultural Affairs to help pay expenses. He worked on the piece between other commissions.

The mural was completed in 1986, and remained a downtown landmark until it was painted over June 2.

Along with the issue of proper notification, Lind and other art law attorneys say that crucial to any VARA case is determining whether damage to a work of art resulted from malicious intent or “gross negligence.”

Although she says she cannot comment on the Twitchell matter, San Francisco artists’ rights attorney Brooke Oliver, who represented the artists in the Lilli Ann case, says: “People don’t often intend to break the law, but they always intend to paint the mural. It is virtually impossible to paint over a mural by mistake.

“When you buy a building, you can see a mural; you know it’s there,” Oliver continues. “There are laws that protect that mural, and the buyer of the building cannot violate those federal and state laws any more than the seller can. Ignorance of the law is no excuse.”