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Oahu is booming with murals, but two recent disputes have highlighted the legal issues and bad feelings that can arise when building owners that originally allowed artwork later decide to do something different with their property.
Bill Meyer, a Honolulu intellectual property rights attorney who has previously represented the artist Wyland, tells property managers and building owners that a relatively obscure and complex 1990 federal law called the Visual Artists Rights Act gives artists sweeping protections that could prevent property owners from painting over a mural or altering any structure, such as a wall, that carries their work.
During a seminar two years ago, property owners and managers “were falling out of their chairs when I told them they run the risk that they cannot destroy the artwork during the artist’s lifetime,” Meyer said. “That’s effectively a lien on the property as long as the artist is alive. VARA (as the Visual Artists Rights Act is known) is a very obscure piece of legislation that has real implications for real property owners.”
Last month Wyland — a part-time North Shore resident famous around the world for his “whaling wall” murals — invoked the Visual Artists Rights Act when he got Hawaiian Airlines to back down on plans that he said would have illegally altered two murals that he painted in 1999 on the sides of the Airport Center building on Ualena Street, which Hawaiian Airlines owns.
While highlighting the public outcry at the time, most media reports failed to mention the role that VARA played in preserving Wyland’s murals.
Hawaiian Airlines declined to comment, but Wyland told the Honolulu Star-Advertiser, “VARA’s been my friend. It certainly helped when I took on Hawaiian Airlines. I said, ‘You guys own the building. You own the wall. But you don’t own the art. You might want to get your lawyers to look at VARA.’ If they had gotten away with it, it would have set a precedence for Hawaii and all around the world.”
Across the island in Kahuku, Victoria Artis also invoked VARA but could not prevent the Kahuku Medical Center on Sept. 15 from painting over a mural that Artis said she, her late husband, Ron Artis, and most of their 11 children painted on the front of the hospital in 2008.
“I feel wronged,” Artis said. “My children feel wronged. I feel very hurt.”
She declined to say whether she has retained an attorney or plans to take legal action against Kahuku Medical Center.
“Let’s just say we’re nobody’s fool, and we’re not to be treated as if we don’t matter,” Artis said. “So many artists are being treated as if they don’t matter. It’s wrong and it has to stop somewhere.”
An “advisory letter” about the Kahuku mural that the state Attorney General’s Office wrote to state Sen. Gil Riviere (D, Heeia-Laie-Waialua) in January 2016 offers a glimpse into the complexities of the Visual Artists Rights Act.
Artist’s lifetime
Deputy Attorney General Stella M.L. Kam wrote, “Our research reveals that the provisions of the Visual Artists Rights Act, 17 U.S.C. 106A, gives artists the right of ‘integrity’ of their artwork, i.e. the right to prevent distortion or mutilation that would damage the honor and reputation of the artist. However, such right is only during the lifetime of the artist, or in the case of collaborating artists, during the lifetime of the last surviving artist. … So to the extent that Mr. Artis’s widow is claiming these rights on behalf of the estate, we do not believe that such a claim would succeed under VARA. However, if members of Mr. Artis’s family were ‘collaborating artists’ on this project, the family members may have rights under VARA.”
Lance Segawa, vice chairman of the Kahuku Medical Center’s board of directors, said the hospital originally welcomed the mural on the front of the building that depicted plantation life around Kahuku.
“The hospital had just come out of bankruptcy … and the exterior of the building was deteriorating quite badly,” he said. “We had gotten bids from painting contractors that were very expensive.”
So the idea of a free mural painted by a local artist who had painted others across Oahu “looked like a win-win at the time,” Segawa said.
Kahuku Medical Center publicist Piia Aarma added, “Nobody was aware of any legal issue nor the existence of the (VARA) law.”
In 2015, Segawa said, “the hospital reached out to Mrs. Artis to inform her of the hospital’s plans to modernize the facility, and in that discussion it was shared that to honor what Ron had done, the hospital had planned to have the mural professionally photographed and it would be the centerpiece for a memorial display within the campus somewhere to pay tribute to what Ron did for the hospital with the family. That offer was not well received.”
Asked whether the medical center’s experience with the Artis mural might have a chilling effect on the explosion of murals on Oahu, Segawa said, “I would hope not. It was such a great spirit of aloha and working together (that led to the mural). Obviously, now we’re all aware of the legal implications. I hope it wouldn’t destroy what is a very positive, spiritual endeavor.”
Few court cases
Several attorneys and law school professors said VARA has never been tested in federal court in Hawaii, and there are too few cases around the country to determine whether trial judges and federal appeals court are likely to lean in favor of artists or building owners.
But in 2008 the Los Angeles Times reported that Los Angeles artist Kent Twitchell had reached a $1.1 million settlement with the U.S. government and 11 other defendants for painting over the “Ed Ruscha Monument” that Twitchell had painted on the side of a federal government building in downtown Los Angeles between 1978 and 1987.
At the time, the Los Angeles Times said the settlement was believed to be the largest of its kind under the Visual Artists Rights Act.
Kamehameha Schools has 42 murals on buildings it owns in Kakaako that were primarily painted by artists belonging to a group called Pow! Wow! Worldwide.
Kamea Hadar of Hawaii Kai is co-lead director of Pow! Wow! Worldwide, which has painted — and repainted — “hundreds” of murals in Kakaako since 2011 during the organization’s annual festivals.
Asked what kind of agreements artists have with landowners such as Kamehameha Schools, Hadar said, “It’s a handshake agreement. If they want paperwork, we can do paperwork. … We make it clear we’re not going to sue anyone. ‘It’s your building.’ … A lot of these guys are coming from the graffiti culture where they’re painting illegally on the street. So they’re happy if it (a mural) lasts more than a week. But we guarantee it will stay up for a year until the next festival.”
Hadar said mural artists want to be flexible and work with landowners because “the more art on the walls, the more art in the world, the better. Now Kakaako is known as an arts community. Kakaako wouldn’t be Kakaako without its murals.”
Kamehameha Schools spokesman Kekoa Paulsen had a slightly different version of the agreement with Pow! Wow! artists.
“It’s been a learning experience for us,” Paulsen said. “Initially, it started off with an agreement with the buildings that we were going to be demolishing or renovating. They could use the space for that time. We do now have agreements, waivers, that artists will sign. As owners of the building, when they need to do redevelopment, we will be able to remove that art or demolish the building.”
Paulsen also hopes that both landowners and artists can work together to continue to offer public art on privately owned buildings.
The key is to have “clear conversations upfront” about what could happen in the future to both the buildings and the art, Paulsen said.
“Once people start putting their work on walls and you need to change it or somebody’s unhappy, you’ve got the basis for disagreement,” Paulsen said. “Have those clear conversations upfront” because, he said, the result is worth the effort in places such as Kakaako.
Murals, Paulsen said, “bring an energy to the place that bare warehouses just don’t have. That was in conjunction with waking people up to the idea that Kakaako is its own community and it’s changing. What better way to express that than through new art?”
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