studioNOTES: Artists' "Moral" Rights reprint

In 1974 Bryan Egelhoff was commissioned to make and install a sculpture on the grounds of a Berkeley CA chiropractor's office building. He spent nearly a year planning and creating the 14-foot-high, ½-ton ferro-cement piece, which he titled Shellfish. It was, he said, designed to withstand salt air, earthquakes, and high winds, and for 26 years it did. So that it could be moved in the future if necessary, he attached it with steel pins to a footing made from "a truckload full of cement."

In the spring of 1998, however, the building was sold. Its new owner called Egelhoff and said she was trying to find another home for the sculpture. Subsequent phone conversations led him to believe that she was pursuing her stated goal and that everything would turn out all right, he says. She even had Shellfish restored it to its original off-white color. Over a year after the first phone call, though, he drove by the site only to discover that his sculpture had been pulled up by its roots and carted away to the dump.

If, instead of being an original work of art, the piece had been a mass-produced lawn gnome, that would have been the end of that: Somebody buys a piece of real estate, they can do with it what they want as long as they don't violate building or health and safety codes. But Egelhoff had a "right of integrity"(often called "moral rights"), and the new owner was supposed to get his permission before destroying–or even changing–the sculpture.

He is currently working with San Francisco attorney Brooke Oliver to seek compensation for this violation of his rights. An expert in the field, she has just settled a case in which a 4-story-high mural was defaced by the new owners of the building on which it had been painted years ago. The award to its creator was $200,000, one of the largest ever under laws that protect art. Federal law, in particular the Visual Artists' Rights Act of 1990 [17 USC 106(A)], says that without your permission no one can destroy your art on purpose or through gross negligence even if you no longer own it, if it is "of recognized stature." Nor can they change, damage, or otherwise modify it in a way that would be prejudicial to your honor or reputation. They are not allowed to take your name off of it, either, or attribute it to someone else. You can sue them if they do any of these things, and they may be liable for damages. This law applies only to paintings, drawings, sculpture, and prints published in editions of under 200, and to work created after June 21, 1991, or before then if as of that date you had not yet sold it or given it away.

If your art is affixed to a building (a mural, for instance), the owner must give you 90 days notice of his or her intent to remove it and permit you to remove it at your own expense. If your work was created since the above date, it must remain intact unless you say otherwise. Eleven states and Puerto Rico have additional laws about the moral rights of artists, as do many countries outside the US. California's, which covers Egelhoff, is among the strongest, and has been in effect for nearly 20 years. Called the California Art Preservation Act, (Cal. Civil Code, Section 987), it provides, among other things, that: "No person, except an artist who owns and possesses a work of fine art which the artist has created, shall intentionally commit, or authorize the intentional commission of, any physical defacement, mutilation, alteration, or destruction of a work of fine art." [CCC 987(c)(1)]. It also provides that if your work has been defaced, mutilated, altered or destroyed through the "gross negligence" of a framer, conservator, or restorer, you may also have grounds, as the lawyers like to say, to sue for damages or, if it's not too late, to make the person stop whatever they are doing to your work. In plain language, these laws mean, basically, that no one can paint a mustache on your Mona Lisa or trash it, or even claim that they rather than you painted it. If you have questions about the law or about a particular situation contact your nearest Lawyers for the Arts. (Reprinted from studioNOTES #27, Nov 1999)