Volume 1, Number 3, Sept.1979, pp.1-2

SB 668: Complications for Art Conservators?

Senate Bill No. 668
CHAPTER 409

An act to add Section 987 to the Civil Code, relating to reserved rights in fine art. (Approved by Governor August 1, 1979. Filed with Secretary of State August 1, 1979.)

Legislative Counsel's Digest

SB 668, Sieroty. Fine art.

Existing law makes no statutory provision for the protection of an artist or the public against the defacement, mutilation, alteration, or destruction of a work of fine art in the lawful possession of one other than the artist.

This bill would prohibit any person, except an artist who owns and possesses a work of fine art of his own creation, from intentionally committing or authorizing another to intentionally commit, as specified, any physical defacement, mutilation, alteration, or destruction of a work of fine art. A person who frames, conserves, or restores a work of fine art also would be prohibited from committing, or authorizing another to commit, any such acts by the use of gross negligence.

This bill would permit the artist to seek specified judicial relief in a court action to enforce the rights and duties created by the bill.

This bill would provide that the court action must be commenced within a prescribed period following the action or its discovery, whichever is longer.

This bill would provide that the enforcement of prescribed rights and duties by the artist or his heir, legatee, or personal representative shall apply only to proscribed action which takes place prior to the 50th anniversary of the artist's death. This bill would not apply (1) where an artist has waived his rights by an instrument in writing expressly so providing or, (2) where the work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of such work and there has been no reservation of such rights in an instrument of writing signed by the building owner and properly recorded. Such instrument, if recorded, would be binding on subsequent owners of the building.

This bill would apply only to acts of physical defacement, mutilation, alteration, or destruction occurring on or after January 1, 1980, regardless of the date of creation of the work of fine art affected thereby.

This bill would specify that if any of its provisions or the application thereof to any person or circumstance is held invalid for any reason, such invalidity shall not affect any other provisions or applications of this bill which can be effected without the invalid provision or application, and to this end the provisions of this bill are severable.

The people of the State of California do enact as follows:

SECTION 1. Section 987 is added to the Civil Code to read:

987.(a) 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 such alteration or destruction; and that there is also a public interest in preserving the integrity of cultural and artistic creations.

(b) As used in this section:

(1) "Artist" means the individual or individuals who create a work of fine art.

(2) "Fine art" means an original painting, sculpture, or drawing of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser.

(3) "Person" means an individual, partnership, corporation, association or other group, however organized.

(4) "Frame" means to prepare, or cause to be prepared, a work of fine art for display in a manner customarily considered to be appropriate for a work of fine art in the particular medium.

(5) "Restore" means to return, or cause to be returned, a deteriorated or damaged work of fine art as nearly as is feasible to its original state or condition, in accordance with prevailing standards.

(6) "Conserve" means to preserve, or cause to be preserved, work of fine art by retarding or preventing deterioration or damage through appropriate treatment in accordance with prevailing standards in order to maintain the structural integrity to the fullest extent possible in an unchanging state.

(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.

(d) The artist shall retain at all times the right to claim authorship, or, for just and valid reason, to disclaim authorship of his or her work of fine art.

(e) To effectuate the rights created by this section, the artist may commence an action to recover or obtain any of the following:

(1) Injunctive relief.

(2) Actual damages.

(3) Punitive damages. In the event that punitive damages are awarded, the court shall, in its discretion, select an organization or organizations engaged in charitable or educational activities involving the fine arts in California to receive such damages.

(4) Reasonable attorneys' and expert witness fees.

(5) Any other relief which the court deems proper

(f) 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.

(g) The rights and duties created under this section:

(1) Shall, with respect to the artist, or if any artist is deceased, his heir legatee, or personal representative, exist until the 50th anniversary of the death of such artist.

(2) Shall exist in addition to any other rights and duties which may now or in the future be applicable.

(3) Except as provided in paragraph (l) of subdivision (h), may not be waived except by an instrument in writing expressly so providing which is signed by the artist.

(h)

(1) If a work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of such work, the rights and duties created under this section, unless expressly reserved by an instrument in writing signed by the owner of such building and properly recorded, shall be deemed waived. Such instrument, if properly recorded, shall be binding on subsequent owners of such building.

(2) If the owner of a building wishes to remove a work of fine art which is a Part of such building but which can be removed from the building without substantial harm to such fine art, 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 heir, legatee, or personal representative, in writing of his intended action affecting the work of fine art, or unless he did provide notice and that person failed within 90 days either to remove the work or to pay for its removal. If such work is removed at the expense of the artist, his heir, legatee, or personal representative, title to such fine art shall pass to that person.

(3) Nothing in this subdivision shall affect the rights of authorship created in subdivision (d) of this section.

(i) No action may be maintained to enforce any liability under this section unless brought within three years of the act complained of or one year after discovery of such act, whichever is longer.

(j) This section shall become operative on January 1, 1980, and shall apply to claims based on proscribed acts occurring on or after that date to works of fine art whenever created.

(k) If any provision of this section or the application thereof to any person or circumstance is held invalid for any reason, such invalidity shall not affect any other provisions or applications of this section which can be effected without the invalid provision or application, and to this end the provisions of this section are serable.

SECTION 2. This act shall be known and may be cited as "The California Art Preservation Act."

(Senate Bill 668 was signed into California law on August 1, 1979. We have not had sufficient time to review all its implications on how it may be interpreted in specific cases. Certainly appeals for legal opinions will be forth-coming by museums and collectors. It is also possible that WAAC will want to participate in an appeal action. We have reprinted the entire bill in order that our members may review it and be prepared to discuss it in Portland or send written comments to the WAAC Secretary.)

Additional keywords: artists' rights, droite morale