Can Contract Law Tame Public Art Controversies?

By Dave Rein

The story of a thirty-two foot tall blue demon with glowing red eyes that that killed its famous creator and greets those arriving at the Denver airport was picked up nationally by the Wall Street Journal, the New York Times and other newspapers.  "Demon" is a bit strong as it was the long-awaited installation of Luis Jiménez's blue mustang commissioned by the Denver International Airport.  But, it has all the ingredients of an attention-getting story:  fame, money, death and even a protest using Facebook.

With some calling for the removal of the blue mustang from the airport, the DIA has been in an uncomfortable spotlight.  But, the DIA has one thing going for it.

Kudos should go out to whomever inserted a provision in the contract between the DIA and the artist that the statue remain in place for five years.  A short detour before I explain why . . . .

Is there any other legal reason why the statute would have to stay in its current location?  Some have suggested that the Visual Artists Rights Act (VARA) which provides artists with limited moral rights in addition to the usual copyright protection would prevent the DIA from removing the enormous mustang. That day may come, but as it stands now, I agree with the Patry Copyright Blog that nothing in the VARA would prevent the DIA from moving the blue mustang -- even if the artist believes that a different location alters the vision he or she had for the art.

An early decision interpreting the VARA (English v. BFC&R East 11th St. LLC) held that moving a sculpture does not, by itself, constitute "destruction, distortion or mutilation."  Although the courts have prevented some entities from moving a sculpture when it would destroy the work itself (i.e. Carter v. Helmsley-Spear), the DIA can rope and move the wild mustang without damaging it.

So why are kudos deserved?  Absent the contractual language, the DIA would have to take a side in the dispute -- understandably, politicians are not eager to take a position over public art that may alienate potential voters.  Likewise, the artist may welcome the attention.  After all, the whole idea of the art may have been to engage us in a conversation.  But, even someone like Jimenez (assuming he was still alive) who has works at the Smithsonian and in several cities -- including my own Kansas City, may not have the clout or financial wherewithal to wage a public relations campaign.  

A contract clause that keeps the art in place at a specific location for 5 years or even 1 year protects both the artist and the public entity that commissions the art from what usually amounts to a vocal minority of the public.  Such a clause effectively creates a "cooling off" period during which the public entity can state that its "hands are tied" because the contract requires the statute to remain in place. The artist can rest assured that for some period of time, his or her art will not be relegated to an obscure location or warehouse.  At the end of the cooling-off period, more reasoned decisions can be made.

Not every contract between an artist and a public entity should include such a clause, but it should be used more frequently than it currently is used.   After all, the blue mustang is hardly the first or last public art project to stir debate or passions.  Just last week, the Artist's Magazine Blog noted the "Money for a Bunny" controversy stemming from Sacramento's commission of a large red rabbit for its airport.  To round out our primary colors, I predict that an airport in the eastern United States will announce the commission of a green elephant -- you heard it here first!   

Sure contracts can be broken, but don't dismiss them as toothless wonders.  One only needs to look to see how the United States government was powerless to stop from giving $165 million or so in bonuses to those in the very unit of AIG that is the poster child for the world-wide economic debacle.

There is nothing wrong with controversy and it may be welcome.  But adding the contract clause should help both the artist and the public entity ride safely through the storm.

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