Worth reading from our attorney below.
For what it’s worth, we recently deaccessioned and removed a mural and the artist was willing to sign a VARA/CAPA waiver – even though he had not done so when
the mural was first installed in 1993.
We honored the mural and the artist with an onsite celebration including a video of the event for posterity.
Beth Tobey
Arts Program Manager
City of Santa Cruz Economic Development Office
(831) 420-5154 |
btobey@cityofsantacruz.com
www.SantaCruzCityArts.com
So, if you read the District Court order in the
5 Pointz mural case (its only 100 pages, weeeeeee) you’ll find, on page 45, where the Judge reiterates what I have been pointing out, and what your contact below has parroted back: the art
must be capable of being removed in order for an agency/owner to use a 90 day notice letter and avoid liability for removal or destruction. The issue is – how is that proven? How do you prove that art was capable of being removed, and therefore all
you had to do under VARA was send a 90 day notice letter?
https://www.courthousenews.com/wp-content/uploads/2018/02/5pointz-damages.pdf
Start at last paragraph on page 41, and don’t skip footnote 19.
The Court explains that the owner should have sent a 90 days’ notice letter
because the plaintiffs’ expert generally testified that removing works of art from buildings was feasible and had been done. Most importantly, the expert testified that the actual murals in the case were on easily removable mediums (sheetrock,
plywood, siding, doors, etc.), meaning the plaintiffs had submitted expert proof that they
could have conserved the murals, which under VARA means the owner must issue a 90 day letter before taking action. Failure to send that letter in that context gives rise to a claim for damages.
In the footnote, the Judge notes the irony in a reverse scenario, which is where I am concerned: If the owner
had given the 90 days’ notice and later removed the murals (because the artists did not do so), the
owner would have the burden of proving which works were removable in order to avoid liability for their destruction. “If that were to have happened, [the expert] would have been a good witness for him.”
My advice has been to have
your expert witness lined up – someone who will testify that a particular
work of art incorporated into a building (a local identified mural) you are proposing to deaccession is actually capable of being removed. That gives you cover to send the 90 days notice letter. If you issue the 90 day letter and then remove the artwork
(because the artist did not), then the artist later claims that the artwork was
not capable of being removed, the artist has a claim for damages because VARA prohibits removal under those circumstances (absent an existing written waiver or art pre-dating the VARA statute). If such a claim arises and you have no expert to testify and
no curator has looked at the actual mural at issue before it was removed, you will have difficult time carrying your burden of proof.
You could contact the expert witness in the 5 Pointz case to see if she has any recommendations or referrals for the City to use – or maybe we could retain her for that purpose
when the need arose. Harriet Irgang Alden, chief paintings conservator at Art Care NYC.
Reed