The Kings Beach, California (on the North shore of Lake Tahoe) Commercial Core Improvement Project on highway 28 running through town added sidewalks, lighting, landscaping and roundabouts.  It was an exciting revitalizing moment for the city of Kings Beach, CA.  Tahoe Public Art (TPA) envisioned placing public art in the roundabouts and set about fundraising and choosing artists.  The artists proposals were chosen by a public vote in the spring of 2015 at the community center where the artists were on hand to answer questions and show off their maquettes.  Once the artists were chosen, the winning designs went through an initial review by Caltrans before proceeding.

In October 2016, as the roundabout art contracts were being finalized and the design documents were being prepared for Placer County review, Caltrans delivered a statewide overhaul to their art policy. At the core of their policy was a contract titled, “ASSIGNMENT AND TRANSFER OF COPYRIGHT AND WAIVER OF MORAL RIGHTS IN ARTWORK” which the artist and the commissioning agency were required to sign as a condition for Caltrans granting easement permits for the project.

The argument given is, the agency doesn’t want to be encumbered with restrictions or liability for affecting, changing, or removing the artwork through maintenance, or emergency measures that may be needed at the site in the future. To support their argument, Caltrans sited the two cases of murals in L.A. where the artists sued and won, Frank Romero and Kent Twitchell.

http://latimesblogs.latimes.com/culturemonster/2009/05/mural-lawsuit.html

And now, the 5Pointz case from Queens, NY

https://www.techdirt.com/articles/20180219/11142039268/court-destroys-future-public-art-installations-holding-building-owner-liable-destroying-this-one.shtml

Although the Caltrans contract is heavy handed, I was willing to waive my rights to the physical artwork in the KB roundabout, allowing Caltrans take full control of any repercussions that may come back to them in the future. However, what I could not do was to sign over the copyright to the artwork design. If were to transfer my copyright of the art design over to Caltrans, then I would not be able to use my own design, in part or in whole in the future without Caltrans’ permission, even if there is no connection to the KB roundabout project.

As my attorney, Louis Greenwald, describes the legal purpose of copyright; “the owner of the copyright may prevent others from creating work that is substantially similar to the copyrighted work. Therefore, the function of copyright is not as a shield used as a protection from liability, but rather as a weapon, which has ramifications far beyond the current project”.  If I were to sign the Caltrans contract and I were to use my own design, or unique methods of material fabrication used in the KB roundabout project to create artwork in a future project, Caltrans could sue me for plagiarizing my own unique design, which they would own the copyright to.

I was asked by my project team with Placer County, why is copyright important and why not just give it up for this one project? Indeed, this is what some artists have chosen to do in Caltrans projects and that is a judgment that each artist and each art agency has to make for themselves.  However, play out the scenario of copyright ownership and the issue becomes quickly problematic in creative industries, where aesthetic continuity is highly valued. Within the field of visual art there is an implicit assumption that a work-of-art reflects the unique and individual expression of the artist(s) and that the design is the result of a specific creative process that the artist(s) have developed over time. Removing a design from the artist(s) vocabulary will effectively halt the development of that body of artwork and may impinge the artist’s ability to promote previous works of art that led up to and are similar to the copyrighted work. Most established artists won’t even consider a project that asks them to give up their design because of the impact it could have on their career.

In my conversation with the Caltrans legal team, I was told that suing the artist was not their intent; their primary interest in issuing the artist contract is self-preservation. However, given their unwillingness to change the language in the contract, I did not find that statement particularly reassuring. There is also the larger question of whether we want a public agency, such as Caltrans, holding creative copyrights…

After my initial review of the Caltrans contract, I raised the issue with my project team and District rep. from Placer County, who put in a request (several, actually) with Caltrans head office to discuss the issue and hopefully find a workable revision.

Finally, in February 2017 they agreed to a joint conference call. On the call were: the Caltrans lead attorney, Maria Sapiandante, two others from the Caltrans legal team, the Director of landscaping and maintenance from Caltrans, two attorneys and the district manager from Placer County, members of Tahoe Public Art team, myself and my attorney, Louis Greenwald. Following introductions and a short discussion about the project background, the conversation was primarily between the Caltrans lead attorney Maria Sapiandante, Louis Greenwald and me.

After some discussion, we established that Caltrans’ primary interest behind asking artists to reassign, transfer and wave their rights was for future maintenance. In short, they wanted full control over whether they moved the art, removed the art permanently, cleaned the art or any other example like this.  Since I was agreeable to each of these in exchange for being able to use my design in future projects, I thought that we had reached common ground.  However, Caltrans was unwilling to reword the Copyright language in the contract. They insisted that it was necessary for their own protection. I then suggested that we write a joint copyright into the contract. Maria agreed to consider the option as a one-time exception if we provided some contract language that she could use to revise the copyright section of their contract. Thank you to those who forwarded contracts with joint copyright language that we could as examples! This is the language that I forwarded to Maria.  

Spring and summer of 2017 passed with repeated requests from Louis Greenwald to the Caltrans lawyer, Maria Sapiandante for any news about resolution from our copyright meeting. Eventually in late fall of 2017, our project team received word that our joint copyright request was denied, the contract would stand as is. That was the end of the line on the project for me.  Caltrans was unwilling to make any exceptions to the Copyright contract wording despite our attempts to be extremely cooperative. 

It is unfortunate that the inaugural project by Tahoe Public Art as a newly formed 501(c)(3) serving eastern Placer County got caught in the crossfire of a misguided policy issued by Caltrans. The two roundabout projects in Kings Beach join the list of dozens of public art projects statewide that are also hamstrung by this copyright issue. The KB roundabout projects were created through consolidated effort by a dedicated group of volunteers and business leaders who formed a public/private partnership to foster and advocate for the placement of public art in the Tahoe Basin. The group raised private funds, which were augmented by some public funding and forged a partnership with Placer County to be the representative organization to integrate artwork with county projects in Lake Tahoe. In the spring of 2015, through a tremendous outpouring of community support, over 400 people turned out for a viewing and public vote for the finalist design proposals for the KB roundabout projects. TPA is continuing with the projects and are now working with two exceptional artists who will each produce beautiful artwork, deserving of the Kings Beach community. Tahoe Public Art estimates the KB roundabout projects to be completed by the end of 2018.