Artists' "Moral" Rights
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)
CONSULTING FOR
ARTISTS
Stuck? Floundering? At a crossroads?
Searching for the right audience?
Benny Shaboy, the publisher of studioNOTES, is available to
look at
your work and talk with you to help you discover the path
that's best for you.
I draw on information and insights gained from
years of interviews and interaction with successful and resourceful
artists, dealers, curators and collectors as well as my own years as a
practicing artist.
This is a service for serious professional artists,
present or future.
Consult in person, by phone, by mail or email or a
combination. For more info: email
or write Box 502-B, Benicia CA 94510-0502 or call 707-746-5516
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Last updated Apr 15, 2006
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