Q: There is a mural painted on one side of my building. I’d like to paint over it. Is this legal?
A: You may have heard the news story about a famous but illegal Banksy painting on a private London building being removed and sold at auction. Before you paint over the mural on your property, it might be worthwhile to research the artist, if known, and attempt to determine whether the work has any value.
If the mural has a “recognized stature” and was painted with the owner’s permission after December 1, 1990, it is probably protected by the Visual Artists Rights Act (VARA). If it was painted without permission or the artist expressly waived their rights under VARA, VARA probably does not apply, though the courts have not clearly ruled one way or another on this issue. VARA is a federal statute preventing, among other things, the destruction or mutilation of fine artworks of recognized stature. Violations of VARA can lead to civil damages, so to protect yourself if your mural qualifies, you can 1) obtain an express waiver from the artist, or 2) make a good faith attempt to notify the artist and give them 90 days to remove the work—though it is unclear how this second option applies when removal of an intact artwork is not feasible.
The California Art Preservation Act also provides for civil damages and injunctive relief for the destruction of original artwork of “recognized quality.” A Los Angeles case in which an artist’s mural was painted over settled for $1.1 million in 2008.
If the mural has significant historic and/or cultural properties, or is an integral part of a historically significant building, it could already be a designated architectural or aesthetic historical landmark. There are dozens of protected houses—mostly mansions—throughout San Francisco. If your property is on the list of San Francisco Landmarks, you are severely restricted from altering its appearance.
Even if your property is not a designated San Francisco Landmark or does not have recognized stature, there is a risk that painting over your mural could draw the ire of neighbors or even passersby. In addition to unwanted attention from the neighborhood, the general public, and the press, city agencies such as the Department of Public Health and Department of Building Inspection could be alerted. It is not unusual for concerned citizens to report façade work out of concern for lead and asbestos contamination. Once a city inspector visits to review the façade work, it is possible they will want to look around inside as well for other potential code violations.
One other potential issue is if the artist obtained permission from the owner and entered into a binding contract commissioning the mural. If there is an enforceable agreement between the artist and owner governing the artwork, you could be bound by that agreement and might expose yourself to liability for damages for painting over the subject of the agreement.
If you are uncertain about any of these issues, seek legal advice from a licensed attorney before taking action.
Copyright © 2017 by Fried & Williams LLP. All Rights Reserved. The information in this article is general in nature and should not be considered legal advice. For any specific matter, please consult with an attorney.