What Rights Do Artists Have When Their Work is Destroyed?

SALT LAKE CITY — Once located on the edifice of the Catholic Community Services (CSS) building in downtown Salt Lake City, artist Ruby Chacon’s sprawling and colorful mural was a recognized site, a symbol of remembrance and faith.

The mural, entitled “Hope and Determination” (2007), depicts the Virgin Mary at the center of the composition, flanked by figures whose bodies curve inward to form a circular enclosure. The figures are depicted atop radiant blue with tendril-like plant elements radiating upward from the bottom of the composition, meant to symbolize both Catholic and Indigenous spirituality. The figures, all persons of color, include members of the artist’s own family, combining the deeply personal with a communal message of faith.

On October 25, 2022, Chacon announced on Instagram that the mural was painted over without her consent. The mural, commissioned by Zion’s Bank Corporation, became a regular fixture in a neighborhood just west of the University of Utah and nearby the busy intersection of 400 South and 700 East within Salt Lake City’s municipal grid system.

In recent years, Odyssey House, an addiction recovery facility, purchased the building from Catholic Community Services. Odyssey House Media and Community Affairs Director Randall Carlisle admits that the organization painted over the mural. He told Hyperallergic that the organization knew nothing about the significance of the mural and painted over the work because of its overtly religious subject matter, which they feared would alienate non-religious clients seeking treatment.

In a statement to Hyperallergic, Carlisle said: “We sincerely apologize to artist Ruby Chacon who created the beautiful mural on the front of the building long before we purchased the building from Catholic Community Services. At the time of purchase, we had no communication from CCS or Ruby about the mural or the history or significance behind it. While the mural was beautiful, it did not reflect the mission or philosophy of the Odyssey behavioral health treatment program. Because of that and because it was our building, we painted over it with absolutely no malice or reflection on the significance of the work.”

While Chacon says she appreciates the apology, she is upset that more was not done to investigate the mural before removing it, noting that her signature was displayed on the mural and the piece was depicted on moveable panels. She also emphasizes that Catholic Community Services, the organization that inhabited the building at the time she created the mural, was a drug rehabilitation and refugee resource center. For Chacon, the mural was personal on many levels.

“I actually have two siblings [depicted in the mural] that died of drug overdoses. It was about going into those meetings and taking a moment of silence for those who are still in recovery or for those who did not make it,” she told Hyperallergic in a phone interview, negating the idea that the work was not in line with the mission underlying Odyssey House’s addiction recovery mission.

This incident is not novel. It stands as one in a string of similar occurrences nationwide, including Santa Fe’s “most embattled mural,” raising important questions about how public artworks are protected and what recourse, if any, exists for artists in the event of their destruction.

In the United States, the most viable method for ownership rights is through intellectual property protection in the form of copyright, trademark, or patents. The threshold for copyright protection is quite low, allowing ownership for any work fixed in a tangible medium of expression. While copyright protection does extend to murals and public artworks, artists commonly sign “work for hire” agreements with the sponsoring entity or building owner, which expressly confer the sponsoring entity — not the artist — with copyright protection. Artists often have very little recourse then, in cases of destruction, alteration, or removal.

In the United States, the Visual Artist Rights Act (VARA) of 1990 (17 U.S. Code § 106A) codifies, in a very limited fashion, the notion of “moral rights.” It promotes the idea that apart from contractual law or real estate ownership, the artist enjoys a certain moral right to prevent their work from alteration or destruction. This protection, however, is extremely limited and does not apply if the artist has not registered a copyright or has assigned away their copyright in a work-for-hire agreement. To succeed in a VARA claim, the artist must also prove the artwork is of “recognized stature,” a work recognized by the art world and the public.

The case law on VARA is limited, as few artists who have sought redress for public works have been successful in obtaining judgments and damages in US courts. This is likely due to VARA’s limited scope, including the “recognized stature” requirement and the prevalence of work-for-hire agreements for public artworks.

In 2017, “Star Trek: The Next Generation” designer and illustrator Monte Thrasher filed suit in the US District Court for the Central District of California for the destruction of his “Six Heads” mural, which was painted over in 2014 to make way for a new establishment in the Los Feliz neighborhood of Los Angeles. The case appears to have been administratively closed in April 2019.

In perhaps the most landmark VARA lawsuit to date, a 2018 jury awarded several artists a judgment of $6.7 million dollars after finding real estate developer Jerry Wolkoff liable for painting over forty-five distinct murals at a site known as 5Pointz, a tourist mecca for graffiti art in Long Island City, Queens.

Importantly, there seems to be a distinction between commissioned murals and those made spontaneously after a protest, for example.

Painted on a storefront in August 2019 after the fatal shooting of Michael Brown, a young man whose death ignited a wave of Black Lives Matter protests in Ferguson, Missouri in the months that followed, a spontaneous mural entitled “Sagging Pants is not Probable Cause” was removed at the request of New Jersey’s Trenton Police Department.

In Salt Lake City, the anonymous art collective SL Mural Makers began painting portraits of individuals killed by police on large panels adorning the edifice of an unused government building in an industrial area west of the city center known as the “Fleet Block” district. Although erected spontaneously without consent from the building’s owners, the murals have become a site of communal activism and remembrance, pushing the city to reconsider development plans for the site. 

Salt Lake City lawyer Edwin Wall has represented many artists in complex copyright matters throughout his legal career. He emphasizes the need for both copyright protection and securing written documentation and notice.

“There’s enormous value in an artist including the copyright notice on the original work, including readily visible signage, the copyright “c” circle, and year,” he told Hyperallergic in a phone interview.

An artist’s failure to register their copyright will result in the forfeit of statutory damages and may require a much more expensive expedited registration process. Wall suggests that for public artworks, artists or the sponsoring entities who commission the work can do even more to protect the underlying copyright in the event a new real estate purchaser wishes to alter it.

“It would be prudent for the artists to go down to the county recorder’s office and provide them with a copy of that registered copyright for filing in the chain of title in the property because that effectively places the owners on notice that the artist or entity has claimed the copyright in that monumental work,” he says.

Despite her grief over the loss of the mural, Chacon hopes this episode will help other artists. “I think the outcome of this should be to raise awareness about the protection of public art and the intellectual property rights of artists,” she said, “because we put so much into our work and a lot of artists who do it are underpaid. For it to be destroyed, it’s hard not just for the artist but for the public who are impacted by that art being erased.”

Source: Hyperallergic.com