California Art Preservation Act Law Definition Elements Defense Lawyer
Definition. The Legislature hereby finds and declares that the physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation, and artists therefore have an interest in protecting their works of fine art against any alteration or destruction; and that there is also a public interest in preserving the integrity of cultural and artistic creations. Cal. Civ. Code §987(a).
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Element 1: Artist
“Artist” means the individual or individuals who create a work of fine art. Cal. Civ. Code §987(b)(2).
Element 2: Fine Art
“Fine art” means an original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser. Cal. Civ. Code §987(b)(2).
The artist shall retain at all times the right to claim authorship, or, for a just and valid reason, to disclaim authorship of his or her work of fine art. Cal. Civ. Code §987(d).
In determining whether a work of fine art is of recognized quality, the trier of fact shall rely on the opinions of artists, art dealers, collectors of fine art, curators of art museums, and other persons involved with the creation or marketing of fine art. Cal. Civ. Code §987(f).
A mural was determined to be a form of painting included under the term “fine art.” Botello v. Shell Oil Company, 229 Cal. App. 3d 1130, 1138, 280 Cal. Rptr. 535, 540 (1991).
Element 3: Physical Alteration or Destruction of Fine Art
As stated in Civ. Code §987(c):
(1) 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.
(2) In addition to the prohibitions contained in paragraph (1), no person who frames, conserves, or restores a work of fine art shall commit, or authorize the commission of, any physical defacement, mutilation, alteration, or destruction of a work of fine art by any act constituting gross negligence. For purposes of this section, the term “gross negligence” shall mean the exercise of so slight a degree of care as to justify the belief that there was an indifference to the particular work of fine art.
As stated in Civ. Code §987(h):
(1) If a work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of the work, the rights and duties created under this section, unless expressly reserved by an instrument in writing signed by the owner of the building, containing a legal description of the property and properly recorded, shall be deemed waived. The instrument, if properly recorded, shall be binding on subsequent owners of the building.
(2) If the owner of a building wishes to remove a work of fine art which is a part of the building but which can be removed from the building without substantial harm to the fine art, and in the course of or after removal, the owner intends to cause or allow the fine art to suffer physical defacement, mutilation, alteration, or destruction, the rights and duties created under this section shall apply unless the owner has diligently attempted without success to notify the artist, or, if the artist is deceased, his or her heir, beneficiary, devisee, or personal representative, in writing of his or her intended action affecting the work of fine art, or unless he or she did provide notice and that person failed within 90 days either to remove the work or to pay for its removal. If the work is removed at the expense of the artist, his or her heir, beneficiary, devisee, or personal representative, title to the fine art shall pass to that person.
(3) If a work of fine art can be removed from a building scheduled for demolition without substantial physical defacement, mutilation, alteration, or destruction of the work, and the owner of the building has notified the owner of the work of fine art of the scheduled demolition or the owner of the building is the owner of the work of fine art, and the owner of the work of fine art elects not to remove the work of fine art, the rights and duties created under this section shall apply, unless the owner of the building has diligently attempted without success to notify the artist, or, if the artist is deceased, his or her heir, beneficiary, devisee, or personal representative, in writing of the intended action affecting the work of fine art, or unless he or she did provide notice and that person failed within 90 days either to remove the work or to pay for its removal. If the work is removed at the expense of the artist, his or her heir, beneficiary, devisee, or personal representative, title to the fine art shall pass to that person.
(4) Nothing in this subdivision shall affect the rights of authorship created in subdivision (d) of this section.
Defendants authorized the destruction of plaintiffs’ mural for which they had received favorable publicity in order to make room for a parking lot. Botello v. Shell Oil Company, 229 Cal. App. 3d 1130, 1133, 280 Cal. Rptr. 535, 536 (1991).
Some courts have asserted in dicta that the California Art Preservation Act has been preempted by the federal Visual Artists’ Rights Act, 17 U.S.C. §106A. See Cort v. St. Paul Fire and Marine Insurance, 311 F.3d 979, 984 n.1 (9th Cir. 2002); Lubner v. City of Los Angeles, 45 Cal.App.4th 525, 531, 53 Cal.Rptr.2d 24, 28 (1996).
Remedies
Injunctive relief (Cal. Civ. Code §989).
Actual damages (Cal. Civ. Code §987(e)(2)).
Punitive damages (Cal. Civ. Code §987(e)(3)).
Attorneys’ and expert witness fees (Cal. Civ. Code §987(e)(4)).
Any other relief the court deems proper (Cal. Civ. Code §987(e)(5)).
Statute of Limitations
No action may be maintained to enforce liability under this section unless brought within three years of the act complained of or one year after discovery of the act, whichever is longer. Cal. Civ. Code §987(i).
Affirmative Defenses
Statute of Limitations (see above).
NOTICE TO REMOVE WORK OF FIND ART – SAMPLE TEMPLATE
NOTICE
To: [name and address]
I, the undersigned, am the owner of the building located at [address], the City of , County of , State of California, a part of which is the work of fine art created by you and described as follows: .
You are hereby notified, as the artist who created that work of fine art, that I wish to remove that work from the building described above. That work of fine art can be removed from the building without substantial harm to the work of fine art.
Demand is hereby made that you remove this work of fine art or pay for its removal within 90 days from receipt of this notice.
Dated .
[Signature]