CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2902

Introduced by Assembly Member Kalra

February 21, 2020

An act to amend Sections 987 and 989 of the Civil Code, relating to fine art.


LEGISLATIVE COUNSEL'S DIGEST


AB 2902, as introduced, Kalra. Fine art: physical alteration or destruction.
Existing law, the California Art Preservation Act (CAPA), prohibits certain acts relating to the physical alteration or destruction of fine art, defined as an original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality, other than a work prepared under contract for commercial use by its purchaser, including the intentional defacing, mutilating, altering, or destruction of a work of fine art except by an artist who owns and possesses a work of fine art that the artist has created. Existing law requires a trier of fact regarding the question of whether a work of art is of recognized quality to rely on the opinions of artists, art dealers, collectors of fine art, curators of art museums, and other persons involved with the creation or marketing of fine art.
This bill would require a trier of fact to additionally rely on the visibility of the work, community recognition awards attributable to the work, and recognition and awards received by the artist of the work.
CAPA provides that if a work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of the work, the rights and duties described above, unless expressly reserved by an instrument in writing signed by the owner of the building, containing a legal description of the property and properly recorded, shall be deemed waived. The law also provides that if a work of fine art can be removed from a building without substantial harm to the fine art, and in the course of or after removal, the owner intends to cause or allow the fine art to suffer physical defacement, mutilation, alteration, or destruction, the rights and duties described above apply unless the owner of the building has provided, or diligently attempted to provide, written notice to the artist or the artist’s heir, beneficiary, devisee, or personal representative, and the notified parties have failed to remove the work or pay for its removal within 90 days. CAPA contains a similar provision in the case of a work of fine art that can be removed from a building scheduled for demolition without substantial physical defacement, mutilation, alteration, or destruction of the work, and the owner of the building has notified the owner of the work of fine art of the scheduled demolition or the owner of the building is the owner of the work of fine art, and the owner of the work of fine art elects not to remove the work of fine art.
This bill would additionally include an interested community and a city art commission in the list of required recipients of the written notice described above and would authorize a court to extend the 90-day period within which a noticed party is required to act to remove the art from the building.
CAPA authorizes an organization, defined as a public or private not-for-profit entity or association, in existence at least three years at the time an action is filed under that law, a major purpose of which is to stage, display, or otherwise present works of art to the public or to promote the interests of the arts or artists, to commence an action for injunctive relief to preserve or restore the integrity of a work of fine art from those acts, subject to certain conditions related to whether a work can be safely removed from a building, which are similar those described above.
This bill would expand the definition of organization to include an entity in existence for at least one year, a major purpose of which is to preserve the cultural or historical integrity of the community.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 987 of the Civil Code is amended to read:

987.
 (a) The Legislature hereby finds and declares that the physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation, and artists therefore have an interest in protecting their works of fine art against any alteration or destruction; and that there is also a public interest in preserving the integrity of cultural cultural, historical, and artistic creations.
(b) As used in this section:
(1) “Artist” means the individual or individuals who create a work of fine art.
(2) “Fine art” means an original painting, mural, sculpture, or drawing, or an original work of art in glass, of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser.
(3) “Person” means an individual, partnership, corporation, limited liability company, association or other group, however organized.
(4) “Frame” means to prepare, or cause to be prepared, a work of fine art for display in a manner customarily considered to be appropriate for a work of fine art in the particular medium.
(5) “Restore” means to return, or cause to be returned, a deteriorated or damaged work of fine art as nearly as is feasible to its original state or condition, in accordance with prevailing standards.
(6) “Conserve” means to preserve, or cause to be preserved, a work of fine art by retarding or preventing deterioration or damage through appropriate treatment in accordance with prevailing standards in order to maintain the structural integrity to the fullest extent possible in an unchanging state.
(7) “Commercial use” means fine art created under a work-for-hire arrangement for use in advertising, magazines, newspapers, or other print and electronic media.
(c) (1) No A person, except an artist who owns and possesses a work of fine art which the artist has created, shall not intentionally commit, or authorize the intentional commission of, any physical defacement, mutilation, alteration, or destruction of a work of fine art.
(2) In addition to the prohibitions contained in paragraph (1), no A person who frames, conserves, or restores a work of fine art shall not commit, or authorize the commission of, any physical defacement, mutilation, alteration, or destruction of a work of fine art by any act constituting gross negligence. For purposes of this section, the term “gross negligence” shall mean the exercise of so slight a degree of care as to justify the belief that there was an indifference to the particular work of fine art.
(d) The artist shall retain at all times the right to claim authorship, or, for a just and valid reason, to disclaim authorship of his or her the artist’s work of fine art.
(e) To effectuate the rights created by this section, the artist may commence an action to recover or obtain any of the following:
(1) Injunctive relief.
(2) Actual damages.
(3) Punitive damages. In the event that punitive damages are awarded, the court shall, in its discretion, select an organization or organizations engaged in charitable or educational activities involving the fine arts in California to receive any punitive damages.
(4) Reasonable attorneys’ and expert witness fees.
(5) Any other relief which the court deems proper.
(f) In determining whether a work of fine art is of recognized quality, the trier of fact shall rely on the opinions of artists, art dealers, collectors of fine art, curators of art museums, and other persons involved with the creation or marketing of fine art. all of the following:
(1) The opinions of artists, art dealers, collectors of fine art, and curators of art museums.
(2) The opinions of other persons involved with the creation or marketing of fine art.
(3) The visibility of the work.
(4) Community recognition awards attributable to the work.
(5) Recognition and awards received by the artist of the work.
(g) The rights and duties created under this section:
(1) Shall, with respect to the artist, or if any artist is deceased, his or her the artist’s heir, beneficiary, devisee, or personal representative, exist until the 50th anniversary of the death of the artist.
(2) Shall exist in addition to any other rights and duties which may now or in the future be applicable.
(3) Except as provided in paragraph (1) of subdivision (h), may not be waived except by an instrument in writing expressly so providing which is signed by the artist.
(h) (1) If a work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of the work, the rights and duties created under this section, unless expressly reserved by an instrument in writing signed by the owner of the building, containing a legal description of the property and properly recorded, shall be deemed waived. The instrument, if properly recorded, shall be binding on subsequent owners of the building.
(2) If the owner of a building wishes to remove a work of fine art which that is a part of the building but which that can be removed from the building without substantial harm to the fine art, and in the course of or after removal, the owner intends to cause or allow the fine art to suffer physical defacement, mutilation, alteration, or destruction, the rights and duties created under this section shall apply unless the owner has diligently attempted without success to notify the artist, or, if the artist is deceased, his or her heir, beneficiary, devisee, or personal representative, in writing of his or her intended action affecting the work of fine art, or unless he or she did provide notice and that person failed within 90 days either to remove the work or to pay for its removal. If the work is removed at the expense of the artist, his or her heir, beneficiary, devisee, or personal representative, title to the fine art shall pass to that person. either of the following is true:
(A) (i) If the artist is not deceased, the owner has given written notice of the owner’s intended action to the artist, the interested community, and the city art commission, if any, and the notified person or entity has failed within 90 days to either remove the work or pay for its removal.
(ii) A court may extend the 90-day period described in clause (i).
(iii) An owner shall be deemed in compliance with this subparagraph if the owner diligently attempts to notify the parties described in clause (i) but fails through no fault of the owner’s.
(B) (i) If the artist is deceased, the owner has given written notice of the owner’s intended action to the artist’s heir, beneficiary, devisee, personal representative, interested community, and the city art commission, if any, and the notified person or entity has failed within 90 days to either remove the work or pay for its removal.
(ii) A court may extend the 90-day period described in clause (i).
(iii) An owner shall be deemed in compliance with this subparagraph if the owner diligently attempts to notify the parties described in clause (i) but fails through no fault of the owner’s.
(3) If a work of fine art can be removed from a building scheduled for demolition without substantial physical defacement, mutilation, alteration, or destruction of the work, and the owner of the building has notified the owner of the work of fine art of the scheduled demolition or the owner of the building is the owner of the work of fine art, and the owner of the work of fine art elects not to remove the work of fine art, the rights and duties created under this section shall apply, unless the owner of the building has diligently attempted without success to notify the artist, or, if the artist is deceased, his or her heir, beneficiary, devisee, or personal representative, in writing of the intended action affecting the work of fine art, or unless he or she did provide notice and that person failed within 90 days either to remove the work or to pay for its removal. If the work is removed at the expense of the artist, his or her heir, beneficiary, devisee, or personal representative, title to the fine art shall pass to that person. either of the following is true:
(A) (i) If the artist is not deceased, the owner has given written notice of the owner’s intended action to the artist, the interested community, and the city art commission, if any, and the notified person or entity has failed within 90 days to either remove the work or pay for its removal.
(ii) A court may extend the 90-day period described in clause (i).
(iii) An owner shall be deemed in compliance with this subparagraph if the owner diligently attempts to notify the parties described in clause (i) but fails through no fault of the owner’s.
(B) (i) If the artist is deceased, the owner has given written notice of the owner’s intended action to the artist’s heir, beneficiary, devisee, personal representative, interested community, and the city art commission, if any, and the notified person or entity has failed within 90 days to either remove the work or pay for its removal.
(ii) A court may extend the 90-day period described in clause (i).
(iii) An owner shall be deemed in compliance with this subparagraph if the owner diligently attempts to notify the parties described in clause (i) but fails through no fault of the owner’s.
(4) Nothing in this This subdivision shall not affect the rights of authorship created in subdivision (d) of this section.
(5) If the work is removed at the expense of the artist, a city art commission, or the artist’s heir, beneficiary, devisee, or personal representative, title to the fine art shall pass to that person or entity.
(i) No An action may shall not be maintained to enforce any liability under this section unless brought within three years of the act complained of or one year after discovery of the act, whichever is longer.
(j) This section shall become operative on January 1, 1980, and shall apply to claims based on proscribed acts occurring on or after that date to works of fine art whenever created.
(k) If any provision of this section or the application thereof to any person or circumstance is held invalid for any reason, the invalidity shall not affect any other provisions or applications of this section which can be effected without the invalid provision or application, and to this end the provisions of this section are severable.

SEC. 2.

 Section 989 of the Civil Code is amended to read:

989.
 (a) The Legislature hereby finds and declares that there is a public interest in preserving the integrity of cultural and artistic creations.
(b) As used in this section:
(1) “Fine art” means an original painting, mural, sculpture, or drawing, or an original work of art in glass, of recognized quality, and of substantial public interest.
(2) “Organization” means a public or private not-for-profit entity or association, in existence at least three years one year at the time an action is filed pursuant to this section, a major purpose of which is to stage, display, or otherwise present works of art to the public or public, to promote the interests of the arts or artists. artists, or preserve the cultural or historical integrity of the community.
(3) “Cost of removal” includes reasonable costs, if any, for the repair of damage to the real property caused by the removal of the work of fine art.
(c) An organization acting in the public interest may commence an action for injunctive relief to preserve or restore the integrity of a work of fine art from acts prohibited by subdivision (c) of Section 987. for any of the following:
(1) Injunctive relief to preserve or restore the integrity of a work of fine art from acts prohibited by subdivision (c) of Section 987.
(2) Any other relief the court deems proper.
(d) In determining whether a work of fine art is of recognized quality and of substantial public interest the trier of fact shall rely on the opinions of those described in subdivision (f) of Section 987.
(e) (1) If a work of fine art cannot be removed from real property without substantial physical defacement, mutilation, alteration, or destruction of such the work, no an action to preserve the integrity of the work of fine art may shall not be brought under this section. However, if an organization offers some evidence giving rise to a reasonable likelihood that a work of art can be removed from the real property without substantial physical defacement, mutilation, alteration, or destruction of the work, and is prepared to pay the cost of removal of the work, it may bring a legal action for a determination of this issue. In that action action, the organization shall be entitled to injunctive relief to preserve the integrity of the work of fine art, art but shall also have the burden of proof. The action shall commence within 30 days after filing. No An action may shall not be brought under this paragraph if the organization’s interest in preserving the work of art is in conflict with an instrument described in paragraph (1) of subdivision (h) of Section 987.
(2) If the owner of the real property wishes to remove a work of fine art which that is part of the real property, property but which that can be removed from the real property without substantial harm to such the fine art, and in the course of or after removal, the owner intends to cause or allow the fine art to suffer physical defacement, mutilation, alteration, or destruction destruction, the owner shall do both of the following:
(A) If the artist or artist’s heir, legatee, or personal representative fails to take action to remove the work of fine art after the notice provided by paragraph (2) of subdivision (h) of Section 987, the owner shall provide 30 days’ notice of his or her the owner’s intended action affecting the work of art. The written notice shall be a display advertisement in a newspaper of general circulation in the area where the fine art is located. The notice required by this paragraph may run concurrently with the notice required by subdivision (h) of Section 987.
(i) If within the 30-day period an organization agrees to remove the work of fine art and pay the cost of removal of the work, the payment and removal shall occur within 90 days of the first day of the 30-day notice. notice, unless a court extends that 90-day period.
(ii) If the work is removed at the expense of an organization, title to the fine art shall pass to that organization.
(B) If Subject to an extension granted by a court pursuant to clause (i) of subparagraph (A), if an organization does not agree to remove the work of fine art within the 30-day period or fails to remove and pay the cost of removal of the work of fine art within the 90-day period period, the owner may take the intended action affecting the work of fine art.
(f) To effectuate the rights created by this section, the court may do the following:
(1) Award reasonable attorney’s and expert witness fees to the prevailing party, in an amount as determined by the court.
(2) Require the organization to post a bond in a reasonable amount as determined by the court.
(g) No An action may shall not be maintained under this section unless brought within three years of the act complained of or one year after discovery of such act, whichever is longer.
(h) This section shall become operative on January 1, 1983, and shall apply to claims based on acts occurring on or after that date to works of fine art, whenever created.
(i) If any provision of this section or the application thereof to any person or circumstances is held invalid, such the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable.