TO:
Simoncini (Partner)
FROM:
DATE: 02/16/2021
RE: Kahlo Construction Co.
Discussion
The overarching issue is this memorandum will discuss is the damage Kahlo
Construction Co. did to the mural during renovations, and looking into whether it is
protected under the acts. This is a state law claim arising from the destruction of a “work
of fine art,” under the California Preservation Act, Cal. Civil Code, § 987. In discussing
the elements of concern stated below, it is likely that Kahlo Construction Co. could be
liable to Rivers’, established on defining the term “work of fine art”, Rivers’ work status,
and stature.
I.
Work of Fine Art
The first issue this case presents is whether or not the mural painted by Rivers’ is
consistent with the definition of “work of fine art”. “ ’Fine art’ means an original
painting, 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”
Cal. Civil Code, § 987. Although the mention the word “mural” is not specifically stated
within the statute; it is reasonable to infer from the purpose of the statute, that a form of
art, that is an expression of an artists’ personality, would be protected within the scope
and purpose of the statute.
In reference to the case Botello v. Shell Oil Co.(1991), the court held that
“Legislature intended the term ‘fine art’ to include paintings in the form of murals that
otherwise qualify for protection under the act. The court held that the declared policies of
the act, protecting artistic expression and preserving the integrity of cultural and artistic
creations, would not be served by excluding muralists from the act's protection.”
Furthermore, it states that it is a “curative statute that should be liberally construed to
achieve its stated purposes.” Based on this clarity provided by the legislature, the purpose
with regard to the intent being “curative” in nature, with regards to the court’s holding, it
is likely that a mural is consistent within the scope of “work of fine art.”
Moreover, in the same case of Botello v. Shell Oil Co.(1991), the courts refer to
The Longman Dictionary of Art as a proper source for determining the meaning of words
used in the statute. The definition of “mural” was defined as “’[a] painting or pictorial
image executed directly on the surface of a wall’ and ‘[a] large-scale painting on canvas
or panel designed to be fixed permanently to a wall.” This provides context on the
legislative intent behind the enactment of this statute, as it is also similarly a California
statute, which gives rise to the understanding that the same relevant principle will be
applied to our case, as seen in Botello v. Shell Oil Co.(1991). Additionally, it is
reasonable to consider the source that the court used in Botello v. Shell Oil Co.(1991),
with regard to its credibility. In this case, they used The Longman Dictionary of Art,
which is consistent with the standards relevant to the court, to be able to come to a
decision; holding, that a mural does fall within the scope of “work of art”. Based on the
information above, this mural is consistent within purpose of the statute, therefore, it is a
“work of art,” for the purposes of the defendant.
II.
Work For-Hire
The second issue presented is whether or not the work that was done by Rivers’ at
the time of painting this mural was “for-hire”. Rivers’ felt obligated to repay the
generosity shown by his sister, Hope, and her husband, Harry Ford, in letting him live
rent-free. And to repay this generosity, Rivers painted a mural for the reception area of
the law firm, that his sister, Hope, and her husband, Harry, worked. However, since
Rivers’ was never employed as an artist, and did not have an express agreement in a
written instrument, it doesn’t seem likely that the work done by him was “for-hire”.
“A work of visual art does not include—(B) any work made for hire; or.” 17
U.S.C. § 101.” And “’work made for hire’ is determinative on – (1) a work prepared by
an employee within the scope of his or her employment; or (2) a work specially ordered
or commissioned for use as a contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as a supplementary work, as a
compilation, as an instructional text, as a test, as answer material for a test, or as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall be
considered a work made for hire.” 17 U.S.C. § 101. Here, first element is not satisfied
because he was never technically employed for the purpose of creating the art. Although
he worked on the same floor as Hope and Harry, his job consisted of bartending, contrary
to the job functions of Hope and Harry, as they are lawyers. Also, taking into account the
fact that Hope and Harry leased the additional floors of building to various artists, it
doesn’t provide relevance in the matter of Rivers’, as he was not established as an artist
yet, to be able to make some type of relevance. Furthermore, the second element isn’t
satisfied because Hope and Harry did not establish an express agreement in a written
instrument signed by all parties. In addition, Under the Visual Artists Rights Act in
“Carter v. Helmsley-Spear, Inc. (1995), the court reversed the injunction as they
determined that plaintiffs who sought appeal were indeed employees, at the time they
created the work. Thus, it was determined that the work was not protected under the act.
Based on the above, work done by Rivers’ in regard to the subject mural cannot be
considered “for-hire.”
III.
Recognized Stature
The final issue presented in this case is whether or not the “international stature”
of Rivers’ was recognized, for the mural to be subject to special protection. In order to
prove this, the test for recognized stature is applied. The facts present that the subject
mural became very well-known. And recognition based on subject mural, in regards to
stature, was learned when Mr. Kahlo did preliminary research and found that Rivers’ is
well-known and widely recognized, and the conduct in which the subject mural was used.
Based on the facts and finding, it is likely that the mural is subject to special protection,
as Rivers’ was internationally recognized.
In the case of Martin v. City of Indianapolis (1999), “The test for recognized
stature under the Visual Artists Rights Act of 1990, 17 U.S.C.S. § 101 et seq., requires
(1) that the visual art in question has "stature," i.e. is viewed as meritorious, and (2) that
this stature is "recognized" by art experts, other members of the artistic community, or by
some cross-section of society. In making this showing, plaintiffs generally, but not
inevitably, will need to call expert witnesses to testify before the trier of fact.” The first
element requires that the visual art have stature to the subject mural in question. This is
satisfied as the facts present in our case state “The subject mural became very wellknown”. In context, it might also be reasonable to infer that the scope of “very wellknown” is of international spectrum, as Kahlo also makes reference to Rivers’,
“International Stature”.
The second element is satisfied, as the facts go on to present that “Over the years,
the law firm acquired a reputation for engaging in important civil rights cases. The firm
held many press conferences in the offices with the mural as back drop. The firm also
used the mural in pamphlets and other media that advertised its successful civil rights
work.” Based on the subject mural becoming very well known, due to the conduct in
which mural had been used such as, office meetings, in pamphlets and other media, and
with regard to the law firm acquiring a reputation over the years and going on to become
successful for over the years, it is reasonable to infer that the subject mural became
recognized, as a result of this conduct. Therefore, the mural in question is subject to
personal protection, based on satisfying both elements to the test recognized for stature,
under the Visual Artists Rights Act of 199.17 U.S.C.S. § 101 et seq.,
IV.
Conclusion
Based on the analysis provided above, it is likely that Kahlo Construction Co. is potentially
liable to Rivers’, under California’s Art Preservation Act. Cal. Civil Code, § 987. All
elements have been satisfied with regards to “work of fine art”, Interpretation of work
status, and stature. Therefore, Kahlo Construction Co. should retain our firm as legal
counsel in the event of litigation.
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