Public art displays carry legal risks

Exhibiting public art may beautify, lift-up and enlighten a public space like landscaping or renovations. Unlike shrubs, however, artwork is subject to laws that govern its selection, removal and destruction. Knowing the basics of the laws can prevent costly litigation.

In 2001, a federal appellate court issued the nation’s leading decision regarding local agency authority to control participation in a municipal public art exhibit. The case, involved two artists, Sharon Rupp and Janette Hopper, who had been asked to submit pieces for display inside the Pasco, Wash., City Hall as part of a partnership between the city and the Mid-Columbia Arts Council.

Rupp submitted a bronze sculpture depicting a nude, headless woman with her naked backside facing the viewer. The piece provoked complaints from the public that it showed the woman in a “sexual position,” and that it was “offensive and disgusting” and “derogatory to women.” Hopper’s submission consisted of linoleum prints of a naked couple in silhouette in post-World War II Germany.

Before the prints were displayed, several city employees characterized them as “offensive” and “sexually suggestive.” Rupp’s sculpture was removed after about a week on exhibit, while Hopper’s prints never made it to the exhibition’s walls.

The court ruled that Pasco violated the First Amendment by not displaying the Rupp and Hopper artworks as intended. Notably, the court emphasized that Pasco “could have avoided this problem by establishing and enforcing a clearly articulated policy that would pass First Amendment muster.”

In addition to First Amendment rights, artists also have “moral rights,” which are enjoyed after ownership of an artwork has been transferred. In 1979, California became the first state to enact legislation to protect artists’ moral rights. The California Art Preservation Act protects artistic integrity by preventing intentional defacement or destruction of public art. That right of integrity does not allow a lawsuit based on negligence, a principle established by a case in which a Los Angeles trash truck rolled down a hill into the home of two artists and damaged many of their works.

At the federal level, in 1990, Congress passed the Visual Artists Rights Act, which provides rights of attribution (attributing a work to its maker) and integrity, although the latter only extends to a “work of visual art” that is of a “recognized stature.” Following the act’s passage, one sculptor was awarded a $20,000 judgment against Indianapolis for its redevelopment project-related destruction of an artwork he had created.

Local governments should follow three strategies to minimize liability risk from selection, removal or destruction of artwork. First, when conducting a municipal public art exhibit, a local agency should consistently enforce written eligibility criteria that do more than simply ban “controversial” or “offensive or politically motivated” artwork. The criteria can be based on community standards of decency if stated in objective language.

Secondly, ignore the critics. A local agency that conducts a municipal public art exhibit should expect to receive complaints about some of the artwork. Regardless of their source or number, such complaints are not a legally defensible basis for removing artwork that the local agency has previously deemed acceptable.

Finally, obtain waivers. Artists can waive their moral rights. A local agency should negotiate such a waiver each time it contracts for the creation of an artwork.
— Terence R. Boga is city attorney for Westlake Village, Calif.