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Twitchell Legal Victory Spotlights Artists Rights

By Eric Bjorgum, first published in Coagula Art Journal (Sept. 2008).

The Case of Kent Twitchell's Ed Ruscha Monument: Government Is the Men, Federal Preemption and What You Need to Know about VARA

In Coagula #81, Mat Gleason wrote an article on the destruction of Kent Twitchell's "Ed Ruscha Monument" and entitled it "Taliban Redux: The Government Is the Man Again." I am one of the attorneys who worked on the case for Kent Twitchell.1 As the case went along, Gleason's article would come up periodically in my mind. Some of his observations were right, some were wrong, all were provocative. Certainly, Gleason's vision reflected the subtle changes in "big government" thru the Clinton years up til the present. What Gleason couldn't know at time is that the Twitchell case bore out the new dangers of government by contract andproxy. Also, legally, the Twitchell case revealed some unique problems with the federal Visual Artists Rights Act ("VARA"), codified at 17 U.S.C. §106A.

It's not my intention to write about "what really happened" or inflame passions against the government. I won't write about "what happened" because, in reality, we really don't know and because it became clear that this tragedy was not the result of one evil actor (though this can be an evil in itself). My point, is to help make sure this doesn't happen again and to keep the dialog open about powerful legal protections that the arts community doesn't seem to fully understand.

I won't inflame passions against the government, mainly because the government doesn't really deserve it. In my view, the government's conduct was more negligent than intentional. Nor was the government an unaccessible Kafkaesque stonewall. As the case played out, the government attorneys were among the most helpful and concerned about rectifying the situation. Of course, that was after·the fact.

Perhaps Gleason's title should nothave been "Government Is the Man" but "Government Is the ? Men." Gleason was correct that the destruction of the ERM showed a disturbingly corporate and disconnected trend in government. In the age of Halliburton and Blackwater, the Twitchell· case reminds us that government contractors aren't just overseas.... "it can happen here."

But "it" doesn't happen because of one person or agency. It happens because of layers ofresponsibility and delegation. By the time we hadgotten up to the Second Amended Complaint in the Twitchell case, our investigation supported the following allegations:

The building at 1031 South Hill in Los Angeles is owned by the U.S. Department of Labor (strange in itself because most federal buildings are owned by the General Services Administration). The DOL oversees a job training program called the Job Corps. Job Corps centers are run by private or public entities who win the right to run the center by bidding. The L.A. Job Corps Center (LAJCC) has been run admirably by the YWCA for many years. In the 1970's one of the former heads of the LAJCC asked Twitchell to paint a mural on the LAJCC.

Twitchell had been aware of the wall as a potential site for a mural. He was very excited by the possibility and proposed a large "monument" to Ed Ruscha. The YWCA agreed, and Twitchell was given access to a penthouse on the roof, and he hung his own scaffolding and paid his own expenses (including parking most days) intermittently for nine years between 1978 and 1987.

Twitchell personally did an astonishing amourt of work on the ERM. He took all the photos of Ruscha and developed them. himself. He mixed the colors by hand. Every stroke of the 70 foot Ruscha figure was done by Twitchell himself, directly on the wall, using a small water color brush. Twitchell told me once that he believes the ERM is the largest known mural of a single figure done entirely by the artist without assistance.

The YWCA handles daily maintenance of the LAJCC, but big projects are overseen by a private contractor located around Washington, D.C. That contractor was charged with overseeing the major work that preceded the events surrounding the painting out of the ERM. Several years ago the YWCA started to look into internal damage caused by water leakage. Water leaking into the concrete walls was damaging the rebar, causing a separation of the rebar and concrete (known as "spalling") on the North Wall that displayed the ERM. Repairing the rebar resulted in holes being punched in wall.

This D.C.· company or its representatives visited the LAJCC and provided a work plan several years ago, as well as some guidance during the execution of the plan. Despite being a private company, some workers at this company had email addresses ending in "dol.gov", which would seem to indicate they were employees of the Department of Labor. Nevertheless, we were assured these were employees of a private contractor.

One employee (or possibly independent contractor), in particular had allegedly received. Some emails regarding the ERM. Some of these emails originated from the YWCA many months (or maybe years) before the painting occurred, and the emails identifiedthe artist protection law and legacy of Twitchell. However, it was not ever definitively established that these emails were actually sent by the YWCA or received by the Washington company. Part of our investigation centered on what this employee knew and when, and what his role was in ordering the work that may have resulted in painting over the mural. This was complicated by the fact that eight months into the case we learned that this employee may not be an employee at all, but may have been on loan from yet another private contractor. So we had to add the employee and new contractor as defendants in the lawsuit, which resulted in another amended complaint and another round of responses from everyone. And these are only the "big picture" people in Washington. Once the work was ok'd by them, the YWCA hired a local general contractor to begin the work. That contractor was a small general contracting business that has a legal "mentor/protege" relationship with a larger company. It also shares some employees with that company, and, on the days leading up to the painting over of the ERM, it appeared that the foreman, one ofthe on-!oan e~ployees, may have had contact with someone who warned him about painting the mural. Thus, the general contractor/protege, the employee, and the larger contractor/mentor all became defendants in the suit.

In turm, the general contractor did not do all of the work on the job, particularly on the ERM wail. Three subcontractors were hired: one to do lead abatement work on the project, one to patch holes in the wall caused by opening up the concrete to rebar, anq one to re-paint the wall. It remains unclear to this day exactly who was responsible for what regarding the hole punching and filling, but each of the subs (and the general of course) were made defendants to the lawsuit.

So, the sum up, here are the parties potentially involved in getting the ERM painted over the Department of Labor as owner of the building, with the YWCA as the long-term occupant and an employee dedicated to facilities management; the structural engineering firm in Washington and its "employee" who may have had contact with YWCA regarding the mural and may actually have worked for another company; the local general contractor and its foreman, who may have been-working for another company; and three subcontractors.

Amidst this menagerie, sometime between the fall of 2005 and June, 2006, work on the buildings and the North Wall ensued. The YWCA mayor may not have sent emails warning the Washington contractor about the mural. The Washington contractor mayor may not have responded. Finally, in the May, 2006 days leading up to the painting of the mural, there mayor may not have been increased activity regarding the mural, including a possible conversation between the general contractor's foreman and a third party off the street. 2 Eventually, dozens and dozens of holes were punched in the mural - more than apparently were anticipated in the original contracting process. And, finally, the contract was followed and the mural painted out in one day. The contract actually called for additional coats of paint, which were not put on.

To get back to Gleason's piece, it does not appear that the dest,ruction ofthe ERM was caused by the act ofone person withthe intentional desire to destroy the ERM. On the other hand, there does not appear to have been any strong deliberate attempt to save the mural. Thus, government is not "the man" but rather a set of unknown men, each of whom was arguably just doing his or her job.

Indeed, it would be simpler if we could have put the finger on one person. But that didn't happen. The case shows some of the problems with thys sort of private contracting. Government may be inefficient, but it is always around and not required to show profitability. A company in the private sector, on the other hand, is required to compete to stay alive, and usually that means getting things done. More work means more budget means more gross revenue and hopefully more profit. Government can safely say "no", but private companies· generally do not succeed by doing so.

These lines were too blurry in the Twitchell case. One could argue that the YWCA has performed well and been,fairly transparent as a quasi-governmental body in administering the LAJCC for many. years. But the contractors in D.C. are another matter. Some of them had government email addresses. One of them was not even known or disclosed to the other litigants until eight months into the case.

The problem is that with all of these layers, individual actors can safely assume they will never be identified as being responsible for actions such as the destruction of the ERM. This doesn't allow them to become evil per se, but it allows them to become complacent. This complacency toward the difficult, "no" decisions is dangerous when combined with the more overt pressures to "get the job done" in.the private sector. A private contractor will err on the side of getting the job done or dojng the deal. The VARA law is not something the private company will encounter often or worry about. This faCeless complacency is a real danger exposed in the Twitchell case. In the age of outsourcing, privatization and general embrace of market effiCiency models for almost all functions, it is important to see that sometimes the lumbering, inefficient beast of government is a necessary evil.

Finally,the Twitchell case exposed some interesting wrinkles in VARA. In short, when VARA was passed, it supersede (or "preempted'" in legal jargon) a similar law in California. However, waiver of the federal government's sovereign immunity was not clearly spelled out. Thus, the government could and did argue that it was immune from suit in Los Angeles under VARA, and could only be sued, if at all, in Washington, D.C. in the Court of Claims, as it is sued with regard to other Violations of the Copyright Act. This argument was successful. Yet, for portions of the California CAPA statute that were not preempted, the government could be suedin California under the waiver of immunity under the Federal Tort Claims Act. In addition, the government could be sued in California for the tort of conversion, in which we basically alleged that Twitchell's property was taken from him.

It is anomalous and somewhat repugnant to think that' the government could argue that it is able to destroy art in California without recourse in California because of a statute that the government passed. But the government was able to make this argument with regard to the alleged violations of VARA. This, would force Twitchell or any artist to pursue a VARA claim in the D.C. Court of Claims and possibly pursue a simultaneous action in California. A lawsuit is often a war of attrition, and the Court of Claims is a specialized court unfamiliar to the vast majority of attorneys. It is an undue burden on an artist to pursUe a multitude of arcane lawsuits at once. Also, the government gets six months to evaluate a claim under the Federal Tort Claims Act, and an additional sixty days to respond once suit is brought.

Thus, it should be made clear in the VARA statute that the federal government can be sued in the same manner as a normal tort under the Federal Tort Claims Act (which aims to assure state residents that the feds will be responsible for tortuous conduct just like anyone else). This would greatly simplify such a suit for the aggrieved plaintiff, and, given the burgeoning reliance on private contractors, allow the suit to be pursued in a single court.

The greatest irony for California artists is that VARA probably gives them less rights than they had before under the, California Artist Protection Act ("CAPA"), while simultaneously, taking those rights away. Before VARA, residents of California could have relied on CAPA, which probably would have forced the federal government to defend suit in California. By passing VARA and attempting to create federal uniformity, the government, may have robbed Californian artists of some of the very rights the legislation sought to protect. Further, because VARA rights (which are supposed to protect the artists' reputation) do not always survive death of the artist, an aging artist may be faced with some sobering choices. It is indeed odd that in a field like fine art where the creators are so often obscure during their lifetimes, the chief legal vehicle to protect the artists reputation does not survive his or her death. On the other hand, the Copyright Act, which is also intended partially to incentivize creativity, provides protection for many decades after the author's death. This inequity should be addressed.

It is also ironic that we live in an era when the Supreme Court has cut down on the farreaching powers of the federal government in favor of states' rights to govern themselves. Yet there is an argument that VARA represents an attempt by the government to pass a uniform national legal scheme that curtails the rights of, California artists and destroys any remedy those artists may have had against the same entity (the federal government) that is taking the local rights. Congress should deal with these strange results and, institute a clear statutory statement that artists can sue the federal government locally for VARA violations. And if VARA really is part of the Copyright Act, then it should be amended to include a term of protection equal to that Act across the board.

Next, awareness of the VARA law needs to be heightened. Insurance policies typically contain clauses regarding coverage of intellectual property they need to be clear on artist's rights as well. In the Twitchell case, it was hoped that a settlement in excess of $1 million would generate awareness of these laws.

But artists need to know about the law. In the last six months, I saw an editorial in the Los Angeles Times decrying a decision to paint out some murals in Orange County, but there was no mention of VARA. I have also read the minutes of a meeting ofa public art organization, and they focused on graffiti and restoration, but there was no mention of VARA.

This is a magazine for artists and about art. Readers of this magazine need to know about VARA and CAPA. Therefore, take note: these laws generally protect an artist's rights of ATTRIBUTION (qualifying works should be attributed to the artist) and INTEGRITY (qualifying works should be protected). The artist may have some right to notice before a work is destroyed (this is what Twitchell did not get). If these rights are violated, the artist may have a claim in federal court for injunctive relief and damage to the artist's reputation for the damage to the work. The artist may also have rightS in his or her state for claims not "preempted" by VARA; this is a very difficult question. Finally, Congress passed a very simple registration process for works to help put the public on notice about the artists' location. This service does not have the technical requirements of obtaining a copyright registration. Information regarding this service is found in Title 37 of the Code of Federal Regulations, section 201.25 (available at http://www.loc.gov/cgi-bin/formprocessor/copyright/).

To learn more about these laws, please consult Title 17 of the United States Code, section 106A. The abbreviation for this section is "17 U.S.C. § 196A." You can see it at: http://www.law.cornell.edu/uscode/. In California, look up section 987 of the Civil Code (or "Civ.Code § 987"), found at http://www.leginfo.ca.gov. For general discussions of VARA http://www.art-slaw.org/VARA.HTM and http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act The U.S.

Copyright Office web page (www.copyright.gov) is also very helpful. Finally, examples of court, papers for a VARA case and other resources can be found at http://www.oliversabec.com/ if you are interested in the Twitchell case, please refer to the federal court's PACER web page (http://pacer.psc.uscourts.gov/) and set up an account. PACER is a great resource for public access to court documents. Documents can be displayed and printed, for only 8 cents a p'age. (The Twitchell case identification is: Kent Twitchell v. West Coast General Corp, et al., Central District of California, Case No. 2:06-cv-04857-FMC (RZx).)

If all else fails, call a lawyer.