IP Law Daily, COPYRIGHT—N.D. Cal.: Valid VARA claim asserted by six muralists whose work was painted over, (Oct 19, 2022)

By Robert B. Barnett Jr., J.D.

The building owner potentially violated VARA by failing to give the six muralists 90 days’ notice before painting over their murals.

Six artists whose building murals were painted over by the building owner plausibly stated a claim under §113(d)(2) of the Visual Artists Rights Act (VARA) because the artists adequately pleaded that the murals could have been removed from the building without destroying the mural, a San Francisco federal district court has ruled. The court also, however, agreed to dismiss a similar claim under VARA §113(d)(1) because insufficient allegations existed that the murals were originally placed on the building with the owner’s permission. In addition, the court dismissed the negligence claim because the artists had no property ownership rights in the murals affixed to the building (Canilao v. City Commercial Investments, LLC, October 18, 2022, Chen, E.).

Background. Monica Canilao, Zarathustra Wesolowski, Ellery Bakaitis, Jeremy Novy, Susan Greened, and Hailey Gaiser are all artists whose murals were installed on the exterior of The Stud, a San Francisco bar. When the bar closed during COVID-19, the bar’s cooperative owners asked the building owner, City Commercial Investments, LLC (CCI), to notify the coop before demolishing the building because the murals, using modern techniques, could be removed.

CCI instead on June 20, 2020, repainted the building exterior white, which erased all murals. The six muralists sued CCI, alleging claims for (1) infringement of their rights under VARA, (2) intentional destruction of fine art in violation of the California Art Preservation Act, and (3) negligence. In July, the court granted the defendants’ motion for judgment on the pleadings but allowed the artists to amend their complaint. Presently before the court was CCI motion to dismiss the amended complaint under Fed. R. Civ. P. 12(b)(6).

VARA. VARA contains two causes of action for artwork incorporated into a building, one under §113(d)(1) and one under §113(d)(2). The difference between the two claims is permission. The claim under §113(d)(1) requires that the artwork be incorporated into the building with the owner’s permission, while the claim under §113(d)(2) does not. Under §113(d)(2), if the artwork can be removed without destroying it, the building owner is required to give the artist 90 days’ notice before destroying the artwork.

§113(d)(1). The six artists had the permission of the bar owner (third-party defendant Handsome Heidi, LLC) but they did not have the permission of the building owner. In the absence of permission from the building owner, the six artists argued that the bar owner was acting as the building owner’s agent. The complaint, however, failed to allege specific facts about the relationship between the building owner and the bar owner.

In the absence of such evidence, the six artists contended that either (1) the building owner retroactively ratified the bar owner’s actions or (2) the bar owner was acting with apparent authority. The court summarily dismissed both theories. Because no agency relationship existed, no ratification could have occurred because an agency relationship is a predicate to ratification. In fact, no allegations existed at all that the building owner had any advance notice of the mural installations. In addition, no apparent authority existed because no allegations existed that the bar owner subjectively believed that it had authority to act for the building owner. Furthermore, the lease provisions never granted apparent authority to the bar owner to act for the building owner. Thus, the bar owner did not have “carte blanche to install artworks on the building without the owner’s knowledge or consent.”

As a result, the fact that the bar owner lacked authority to install the murals doomed any claims by the artists under VARA §113(d)(1).

§113(d)(2). To establish a claim under §113(d)(2), the artists were required to adequately plead that their murals were removable, which entitled them to the 90-day notice period. A work is “removable” if it can be removed from the building without destroying or distorting the artwork.

The complaint cleared the removability hurdle by alleging that current advancements in art preservation and engineering techniques have enabled mural removable from buildings. Based on these techniques, the complaint asserted, the murals could have been removed and preserved without destroying them. Thus, the court ruled, the artists had adequately asserted a claim under §113(d)(2), and it survived the motion to dismiss.

Negligence claim. The complaint’s negligence claim asserted that the building owner breached a duty of care owed to the six artists, which included giving them an opportunity to remove their murals from the building. While VARA typically preempts state law claims protecting the same interests, the court said that it would permit the six artists to proceed with their state law claim if they could establish property rights distinct from the moral rights that VARA protects.

The negligence claim failed, however, because the six artists failed to establish an ownership right in the murals affixed to the building. The murals were permanently attached to the permanent building walls. Under California law, therefore, the murals were “so affixed to the building as to be considered legal fixtures,” which meant that the murals were owned by the building owner (California Civil Code §660). While the question whether something is permanently attached to a building is normally a question of fact, under these facts, the court ruled, “the undisputed evidence establishes the murals’ status as a fixture affixed to the building.” The negligence claim was thus dismissed.

The court, therefore, granted the motion to dismiss the VARA claim under §113(d)(1) and to dismiss the negligence claim. The court also denied the motion to dismiss the VARA claim under §113(d)(2).

The case is No. 3:20-cv-08030-EMC.

Attorneys: Andrew Michael Clark (Eisenberg & Baum, LLP) for Monica Canilao. James Scott Donald (Spinelli Donald & Nott APC) for Commercial Investments, LLC.

Companies: Commercial Investments, LLC

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