WWYH: “Eyes on the NYC Department of Cultural Affairs” and Changing Policies

By Heather DeSerio*

On February 28, 2017, the New York State Bar Entertainment, Arts and Sports Law’s Fine Art’s Committee (EASL) hosted a brown bag lunch with Kristin Sakoda, Deputy Commissioner and General Counsel of the New York City (NYC or the “City”) Department of Cultural Affairs (DCLA or Department). Sakoda is a veteran at the DCLA and runs an all-female department of three attorneys. She presented to a room full of lawyers working in the arts about the DCLA’s mission the types of legal issues involved in the agency’s work, and the DCLA’s involvement in shaping the cultural policy of the City. Attendees of the event also learned about how the City administers and manages public art initiatives from the perspective of a lawyer, and the policies that shape the City’s arts-related initiatives.

Background

The creation of the Department of Cultural Affairs has an interesting story about how it became the DCLA that exists today. In 1869, a group of citizens proposed that NYC should build a museum for natural history, which led to the construction of the American Museum of Natural History. Afterwards, a number of museums began construction around the city. Next, followed the formation of an 11-member panel Art Commission in 1898, that oversaw the proposal and installation of permanent works of art, architecture, and landscape architecture on NYC owned property. Around 1934, then-mayor of NYC Fiorello La Guardia, appointed a Municipal Art Committee to advise the City on ways to stimulate New York’s cultural life during the hardships of the Great Depression. The Committee used funds from the Works Progress Administration, the emergency Relief Bureau, and other foundations. It wasn’t until 1968 that the DCLA was created within NYC’s Parks Department. In 1976, under the direction of Mayor Abraham D. Beame, the DCLA became its own department that existed separately from the Department of Parks and Recreation with its own commissioner. This was done so that the needs of the growing DCLA could be met and the Parks Department could better focus on providing for the Parks and Recreation initiatives.  

About the DCLA

The DCLA serves an important function in a city known for being one of the biggest cultural centers in the world. The annual budget on the Mayor’s Office website indicates that the DCLA is the nation’s largest municipal funder of the arts in the United States. During their 2017 fiscal year, their expense budget was $84.81 billion and a capital budget of $14.0 billion through 2018. (For more information about different breakdowns and allocations of funding for New York City see the annual budget by clicking here.)

The Department plays a pivotal role in encouraging and supporting public funding of art, artist residencies, and provides many grants to artists and institutions throughout the metropolitan area. This support contributes to New York’s diverse and robust cultural scene.

The DCLA has three primary funding divisions that provide support for the arts community. First there is the the Program Services Unit, which administers funds to groups that provide cultural experiences for NYC’s residents and visitors. The second funding division is the Cultural Institutions Unit that provides operational support (in the form of unrestricted operating grants and the payment of all energy bills – heat, light and power) for 33 major cultural institutions occupying City-owned buildings or land, such as the Metropolitan Museum of Art. The third division is the Capital Projects Unit (CPU), which provides capital in the form of grants for the design, construction, and equipment for those institutions and other cultural groups in City-owned and non-City-owned facilities. The Capital Projects are funded from the NYC’s Capital budget.

Among their other projects, the DCLA administers New York City’s program Percent for Art, which makes art accessible to the public and visible throughout NYC by commissioning and acquiring art for display in public spaces. As the title of the program implies, 1 percent of the City’s capital is made available for the commission of or acquisition of a public piece of art. There are currently over 400 acquired works displayed around NYC. Click here to view a map of all the public artwork on display that was funded through the Percent for Art Program.  A couple familiar works include the Frederick Douglass Memorial, located in Central Park West and the Triumph of the Human Spirit monument in Foley Square (near the court houses downtown). On February 15, 2017, NYC’s Office of the Mayor released a statement that Mayor de Blasio recently signed off on an increase to the Percent for Art program in the amount of 1% of the first $50 million as indicated in the bill, Intro. 1296-A.

Another key program administered by the DCLA is Materials for the Arts (MFTA). It was  created in 1978. MFTA provides nonprofit and educational organizations with free supplies to support and grow art programs citywide. The program is headquartered in a large warehouse owned by DCLA in Long Island City, New York. MFTA collects reusable materials from a host of donors, and distributes them free of charge to qualifying non-profit arts organizations, City agencies, public schools, and social, health and community service organizations that have arts programs in New York City. Individual artists qualify only if they are financially sponsored by a non-profit organization. Once an entity qualifies, they can request a shopping appointment for materials at the MFTA warehouse or can obtain items through their online listing database. The MFTA also provides training for teachers on how to creatively reuse the donated materials and integrate them into art projects. The MFTA has distributed free supplies to more than 1,900 member organizations and public schools and collected more than 1.2 million pounds of high quality reusable goods valued at $5.8 million from over 1,685 donors, according to the DCLA’s website.

The Department has many new initiatives that focus on increasing support for art institutions and artists. For instance, one of these new initiatives involves integrating art into city services involves placing individual artist to partner with DCAS in the Public Artists in Residence (PAIR) program. There is also the IDNYC Cultural Partnerships where the City offers NYC residents a free ID card that has the benefit of providing free one year membership to venues throughout the five boroughs such as the Museum of Modern Art, the New York City Ballet, the Bronx Zoo, and many more. These programs provide the public with increased  access to art programs to foster art education and more opportunities for residents to become members of cultural institutions to gain free access to museums, zoos, aquariums, and much more.  

DCLA’s Legal Counsel

The DCLA’s legal department provides guidance and support for most of the programs that the DCLA offers. More cultural institutions, museums, government, for profit and nonprofit should take note of the number of attorneys working for the DCLA. There are at least three attorneys that work together to provide support for all of DCLA’s initiatives in conjunction with the NYC Law Department. DCLA’s General Counsel handles a wide variety of issues for the City such as employment law, contracts, artist rights, leases, licensing, and legislative drafting.

The legal department at the DCLA also focuses on the City’s interest in artist rights under the 1990 Visual Artists Rights Act (VARA), 17 U.S.C. § 106A. This provision is relevant when the DCLA commissions or agrees to purchase a work of art to be displayed publicly. Artists who are commissioned by the DCLA or who sell their artwork to the City should be aware of their “VARA rights.” This is because the artist’s moral rights in the artwork are impacted when the agreement is a work for hire agreement or the City includes provisions that indicate that the City has right to control the work or remove it for safety reasons. See, this previous article VARA, Back to the Rescue of Public Art in NYC written by Irina Tarsis of the Center for Art Law, for more information about VARA rights and provide an example of issues that an artist can face with public art agreements.

The DCLA attorneys also work with city council and provide guidance in drafting legislation for the Percent for Art Legislation program by making policy decisions for the department. The lawyers at the DCLA also carefully watch issues at the national level because decisions at the federal level can impact their Department. This is especially true as the new administration is taking office and making significant changes.

Federal Funding and the DCLA

Funding for exhibits is not the only problem that cultural institutions will face. On March 16, 2017, the United State’s Office of Management and Budget, released the proposed Budget for 2018 making it clear that the current administration wants to eliminate funding for the National Endowment for the Arts (“NEA”). The state and local Department of Cultural Affairs across the country face an important question about how they will be impacted by the proposed budget cuts to the NEA. Sakoda pointed to the fact that the federal budget trickles down to the state and then to the city. If the funding received by the State is reduced by the Federal Government it will in turn have a dramatic effect on the amount of available funds that the City receives from the State. Accordingly, the reduced budget the City will receive from the State will be reflected in the City’s reduced funding for grants to artists and cultural institutions. This will result in a decline in funding for exhibitions, art development, art organizations, and other art initiatives. There will also be a reduction in the acquisition of public art, and cultural institutions will be impacted significantly at the local level if the federal budget is reduced.

One of the most concerning issues with the federal cutbacks for the NEA is the federal insurance program that the NEA provides for exhibitions. There is a common requirement in loan agreements that museums must take out insurance for artwork displayed in an exhibit. Insurance is commonly provided by the NEA’s federal insurance program. This federal insurance program plays a huge role in providing insurance for artwork and without it many exhibits would never happen in the United States because major museums across the country would be unable to get insurance on their own for the amount required to put on large exhibits. The New York Observer’s article The Masterpiece Trade: Meet the U.S. Agency That Makes Museum Blockbusters Possible noted the role the federal insurance program plays in bringing major exhibits to museums by pointing out that the Museum of Modern Art displayed a statement that indicating that the recent “‘Henri Matisse: The Cut-Outs’ exhibit from October 12, 2014–February 10, 2015, was ‘supported by an indemnity from the Federal Council on the Arts and the Humanities.’”

For more information about the role that the NEA plays in the arts in the United States please read the article, The Legislative History of NEA and NEH, written by Emily Lanza.

Conclusion

Not only with the programs the DCLA manages trickle down to artists, institutions, and organizations, even public schools will feel the effects of this blunder because they would not receive materials from the Material for Arts Program. Artists will feel the shift in the federal government’s agenda in a dramatic way and be left with little financial assistance to spur creativity and care for artwork outside of the patronage system. It will have a stifling effect on creativity, and a failure to fund the NEA will reduce the number of important exhibitions, development of important non-profit organizations, leasing and acquisition of equipment, and reusable materials for public schools that help provide the public with motivation to develop and come up with new works to be displayed and interacted with.

Without the support and expertise of the DCLA, there is a big question that plagues the future of many publicly funded organizations, institutions, and art projects. The programs that the DCLA department funds are all susceptible to be reduced in proportion to the amount of funding received from the federal government. The policies and legislative initiatives could be altered as well. At this time, there is concern about whether the proposed budget or reduction in NEA funding will be approved by Congress. There are also discussions regarding an approved budget cut’s impact among members of the legal community that work within the creative organizations and individuals.

Helpful Sources

*About the Author: Heather DeSerio (NYLS, JD Class 2017) is a Spring 2017 Legal Intern with the Center for Art Law. In her studies, she is concentrating in Intellectual Property Law. Prior to law school, she worked as a fine artist and received a Bachelor of Fine Arts in Painting from Ringling College of Art and Design. She can be reached at heather.deserio@law.nyls.edu.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely upon the information in this article and should consult a licensed attorney.

Whose Rights? Anish Kapoor’s “Dirty Corner” Exposes A Battle Between Artists’ Moral Rights and The Rights of the Public

By Adrienne Couraud*

Screen Shot 2016-08-05 at 12.46.11 PM.png

Anish Kapoor’s Dirty Corner, before and after vandalism.

In 2008, President of the L’Établissement public du château, du musée, et du domaine  national de Versailles, Jean-Jacques Aillagon debuted a series of solo art shows and temporary art installations at the house and gardens of the Chateau de Versailles. Beginning with the summer solo retrospective of American artist Jeff Koons, the program has grown both substantively, including past artists such as Takashi Murakami (Summer 2010), Joana Vasconcelos (Summer 2012), and currently, Olafur Eliasson (Summer 2016), as well as procedurally, expanding from a seasonal to a year long program. In 2015, the contemporary art program of Versailles offered artist Anish Kapoor a solo show to integrate his sculptures within the spatial challenges the house and Versailles gardens present. As President of the Palace of Versailles Catherine Pégard states, “[Versailles] is not a museum or a gallery or an exhibition space.”

In his own words, Indian-born but British-raised artist Anish Kapoor describes his raw-material born sculptures as “talking” about himself. Kapoor’s sculptures emulate a “void” straddling the duality of  “something, even though it is really nothing.” Kapoor originally described his 2015 “Dirty Corner” installation destined for Versailles , a steel-and-rock sculpture over sixty meters long and ten meters high, as “the vagina of the queen who is taking power,” but later retracted his statements to focus on his message: “to create a dialogue between these great gardens and the sculptures”.

After the sculpture was installed it was subject to repeated vandalism attacks and Kapoor declined to remove it “to bear witness to hatred”. Following the complaint about the Kapoor’s “Corner” launched by a right-winged politician and Councilor of Versailles Fabien Bouglé, an administrative French court ordered the covering of anti-Semitic graffiti on artist Anish Kapoor’s installation, Dirty Corner, at the Palace of Versailles [“Versailles”] in September 2015. Mr. Bouglé filed a complaint with a French public prosecutor against Mr. Kapoor and Catherine Pégard, President of Versailles, for “inciting racial hatred, public insults, and complicity in these crimes,” after Kapoor decided to leave the vandalism as a public testament, “belonging to anti-Semitism that we’d rather forget.”

The Dirty Corner Court Case

Prior to the court decision, Versailles announced plans to alter Kapoor’s installation by covering the vandalism with a shiny gold foil against the faded brass structure, leaving the defacement as an obvious disruption of the work – a process that was expedited following the court decision. Despite artist’s meeting with French President François Hollande, who declared the defacements “hateful and anti-Semitic,” Kapoor explained to the French newspaper Le Figaro, “I had already questioned the wisdom of cleaning [the installation] after the first vandalism.” The French Minister of Culture, Fleur Pellerin, stated she respects Kapoor’s decision but found the public debates thus spurred “extremely interesting and raise the question of creative freedom.”

The Tribunal Administratif de Versailles released a statement about the decision deeming the vandalism a “serious and clearly illegal breach of fundamental liberty.” Though the court acknowledged the moral rights of artists, “this freedom has to be reconciled with respect for other fundamental liberties,” alluding to the requisite for public peace. The public nature of Kapoor’s installation required that the court ensure protection to “everyone from attacks on their human dignity.”

Kapoor reacted to the court’s decision in a phone interview from Moscow at the opening of his exhibition at the Jewish Museum and Tolerance Center, declaring the court’s decision a “perverse reversal” of his accord. “Without proper public debate and proper public exposure for culture,” Kapoor proclaimed, “we are in a fascist state.” Kapoor’s installation was vandalized once prior to the court decision and, thereafter, three additional times, to which Kapoor maintained, “I don’t want to see it on the work; I find it vile.” In his steadfast battle against racial hatred, however, Kapor has “refused to remove it and pretend it didn’t happen,” raising important questions concerning the boundaries of  aesthetic taste and artistic value.

What Are Moral Rights?

“Droit moral”, or moral rights, stem from the Kantian and Hegelian concept of transferring an artist’s personality into a work and refers to the right of an artist to control his work. Moral rights protect the personal value, rather than the monetary value, of a work. Under American Law, inalienable moral rights are have more limited jurisdictional protections than in other jurisdictions, as they are protected under judicial interpretation of copyright and trademark law, coupled with 17 U.S.C. §106A, or the Visual Artists Rights Act of 1990 (VARA), which protect moral rights for the life of the artist.

Prior to VARA, U.S. legislative history reveals the American endeavor to define moral rights as “derivative works”, or artistic works based on the work of another artist, demonstrated within the Copyright Act and the Lanham Act, which defines trademarks and unfair competition. After VARA was passed, in the United States moral rights automatically vest within an artist but are limited to a “work of visual art,” granting two particular rights: the right of attribution and the right of integrity. The right of attribution allows an artist to associate or disassociate his name from his work of visual art. The right of integrity prevents both the intentional modification of his work of visual art if the modification is likely to harm the artist’s reputation and the destruction of any work of visual art protected by a recognized stature.

Under European Law, however, copyright law typically protects inalienable moral rights perpetually. Under French law particularly, copyright law protects four moral rights: the droit de divulgation; or the right of disclosure, the droit de repentir ou de retrait, or the right to affirm or disaffirm works previously publicized works; the droit de paternite, or the right of attribution; and the droit au respect de l’oeuvre, or the right of integrity. French courts have refined the right of integrity to allow owners of physical works the right of reasonable use and the right of reasonable adaptation without gross distortion.  For example, French moral rights do not expire, regardless of the number of created copies of a work, while American moral rights more rigidly limit works based on the number of copies created.

The Dirty Corner’s Effect on Moral Rights

The French court decision affecting Kapoor’s Dirty Corner appears to place two additional refinements on moral rights in France because of the work’s public location. First, the public installation of Kapoor’s work subjected it to a public order. Second, the public installation of Kapoor’s work subjected the public to “protections of human dignity.” Though the court recognized Kapoor’s moral rights, the moral rights could not outweigh “other fundamental liberties” of the public, alluding to the requisite for public peace over artistic scandal.

“It’s a terrible, sad thing,” Kapoor announced in his reaction to the court decision. “France is weird, I don’t understand it,” Kapoor added. “It doesn’t take in the full context. We’re going to take the case to appeal and we’ll see what happens.” Kapoor continued, “[w]e have to experiment in public, it’s our role as artists, that’s how society grows. If we stop that, we might as well live in a fascist state.” For now, however, Kapoor will have to channel his determination to test the creative and cultural limits of France outside of the Palace of Versailles.

Sources:

*About the Author: Adrienne Couraud (J.D. Candidate 2017) is a student at Brooklyn Law School. She may be reached at adrienne.couraud@brooklaw.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

God Made Idiots: The Vandalism and Theft of Public Art

by Kristen Pionati

“In the first place, God made idiots. This was for practice. Then he made school boards.” –Mark Twain

B9316095572Z.1_20150202133331_000_GGQ9RK4PK.1-0

Mark Twain’s grave before and after the theft. (Star-Gazette)

In his 1897 book Following the Equator: A Journey Around the World, Mark Twain (born 1835, died 1910) wrote that “In the first place, God made idiots.” Even today education and upbringing continues to escape those who steal and vandalize art. Theft and vandalism of art are as old as time, but most of us like to think that here and now in the United States, graves are not desecrated and, if our city pays an artist for unique public works, they are not immediately stolen. However, we are wrong to assume these crimes only happen in faraway times and places. Some recent instances of theft and vandalism demonstrate the failure in our assumption and highlight the potential motivation behind those acts.

The granite pillar on Mark Twain’s tomb in Elmira, New York is 12 feet tall, or “mark twain” if you are a steamboat captain calling out a two fathoms measurement. Originally the pillar featured a 12 by 12 inch bronze plaque with Twain’s likeness in profile created and installed by local artist Enferd Anderson in 1937. However, sometime between Christmas and the New Year at the end of December 2014, someone brought a ladder to Woodlawn Cemetery and removed the plaque from its position towards the top of the pillar. The Cemetery Superintendent, Bryce Cuyle, told Elmira’s Star-Gazette he did not believe the plaque was stolen because of its “scrap value” but rather because “of who it was.” Cuyle went on to say he expected “someone will start chirping about this on social media.” Fortunately, if the original is not recovered, Twain expert Kevin MacDonnell has a plaster cast of Anderson’s work that could be used to restore the pillar according to the Star-Gazette.

Perennially reprehensible, theft of art extends to public works as well. For example, last summer, also in New York, vandals stole most of the street signs created by artist Ryan McGinness. In 2014, New York City commissioned McGinness to create abstract signage for city streets. The end result was fifty oblong red signs that look like traditional signage from a distance but upon closer view have bold graphic designs unique to each sign. In the first three weeks after the signs went up, nearly forty had been stolen. The Department of Transportation launched a full-scale investigation into the theft, seeking security footage from local businesses and government buildings where the signs were placed. The city replaced many of the stolen signs, but had not replaced all fifty as of August. No arrests were made in connection with the signs’ disappearances.

Similarly, last March a Memphis, Tennessee man stole a 4 foot by 3 foot statue by Ted Rust, the former director of the Memphis College of Art. The 350 pound statue, called “The Acrobat,” normally on view in a park, was stolen from a studio’s yard, where it was undergoing repairs and was kept covered by a tarp behind a locked fence and two heavy chain locks. Police found “The Acrobat” after pieces of the sculpture were recognized at a scrap metal yard. The scrap yard had paid the thief $300 for the pieces taken from the sculpture. Intact, the sculpture was worth $65,000. Wayne Barnes, 49, was arrested and charged with theft of property over $60,000 and vandalism between $10,000 and $60,0000.

These crimes occur across the world. Just this month, a six-foot fiber glass and stainless steel statue of Manannán Mac Lir, the Celtic God of the Sea, disappeared from a mountainside in County Derry in Ireland. The sculptor, John Sutton, who also worked on HBO’s “Game of Thrones,” expressed his shock following the theft to the BBC. According to Sutton, it would have taken many men with angle grinders several hours to remove the statue from its base and from the mountaintop where it was displayed. Police are investigating a “religious aspect” to the crime. Left behind in place of the statue was a wooden cross that said “You shall have no other gods before me, likely a reference to the pagan nature of the statue. Fortunately, the Limavady Borough Council voted to replace the statue after people from all around the world offered to contribute to the creation of a new statue. The Council acknowledged that it will be more careful in ensuring the replacement artwork is less vulnerable to theft.

One reason these crimes involving public art keep occurring may have to do with the medium—metal. Rising values for scrap metal have caused thefts, including theft of public art, to rise. For example, the BBC reports that in the United Kingdom, many metal public works are being placed in storage while fiberglass copies are put in their place. This plan may be a good one because the scrap metal value of sculptures is significantly less than the value of the art. Worse, as the Memphis example above serves to demonstrate, in stealing the art thieves often have to destroy it. If the work is large enough, as Rust’s was, the thief must break it into smaller pieces to remove it from its place and convincingly sell it as scrap metal.

_80424348_statue

The site of John Sutton’s Manannán Mac Lir statue before and after its theft. (BBC)

There are several ways the law is equipped to deal with theft of public art and artworks displayed in the open. They will be discussed in turn in the following sections.

Theft

Those found to have stolen art may be simply charged with theft. Model Penal Code § 223.2 defines theft as the unlawful taking or unlawful exercise of control over the movable property of another with the intent to deprive the person of that property. Under MPC § 223.1, if a stolen work of art is worth more than $500, that theft charge would be a felony charge. Once caught, the thief of the Mark Twain plaque would be subject to the New York Penal Law § 155.05, which bears nearly identical language to the MPC and takes a broad view in its definition of property. Wayne Barnes, similarly, was subject to Tennessee Penal Code § 39-14-105, which makes theft of property valued between $65,000 and $250,000 a Class B felony.

However, relevant Penal Laws do not extend to specifically protect public art commissioned and owned by the government. There seem to be very few laws specifically covering the theft of government property, including taking and vandalism of art. Many state penal codes explicitly outlaw the theft of property pertaining to public utilities like gas, water, electric, or sewer systems without specifically addressing other real property. Curiously, South Carolina is an exception. Section 16-13-330 of the South Carolina Code specifically prohibits the stealing or damaging of works of literature or art. The South Carolina statute takes a broad view of art and includes works of art in a “library, gallery, museum, collection, exhibition or belonging to or in the care of any department or office of the State or local government, or belonging to or in the care of a library, gallery, museum, collection or exhibition which belongs to any incorporated college or university or which belongs to any institution devoted to educational, scientific, literary, artistic, historical or charitable purposes.” Unfortunately, the statute defines the crime only as a misdemeanor, punishable by a fine not to exceed $100 or thirty days in jail, both clearly insignificant punishments when the art destroyed and stolen can be priceless.

Vandalism

Vandalism laws provide another source of punishment. In the New York penal code, vandalism is contained within the criminal mischief laws in Article 145. Under that Article, a person can be charged with several degrees of criminal mischief, requiring intentional or reckless damage of the property of another. The four degrees of criminal mischief differ in the value of the damage done to the property and determine whether the crime will be classed as a misdemeanor or felony. The state could also charge someone with criminal tampering, which is a misdemeanor unless a person tampers with a public utility. Most relevant to the theft from Twain’s grave, Article 145.22-3 prohibits cemetery desecration, including the theft of any real property from the grave whose value exceeds $250. Tennessee’s vandalism statute is similar. It prohibits the intentional cause of damage or destruction to property of another, including public property. Vandalism is graded identically to theft, resulting in a Class B felony for Wayne Barnes.

Scrap Metal Regulations

Finally, in order to combat thieves selling scrap metal, there are laws which govern scrap metal processors or junk dealers. In New York, General Business Code Articles 6 and 6-C respectively require junk dealers and scrap metal processors to be licensed with the state. Both junk dealers and scrap processors must keep a record of the person selling the metal, their address, and contact information. In both cases, the person must provide identifying information about the metal, either when they purchased the metal or a description of when, where, and from whom the property was obtained. The Institute of Scrap Recycling Industries (ISRI) is a Washington, D.C. based trade association dedicated to raising awareness about the theft and sale of scrap metal. It targets law enforcement agencies, prosecutors, recyclers, and legislators to help develop a comprehensive program to address the problem of metal theft. ISRI even runs a website, ScrapTheftAlert.com, that allows users to report metal thefts and subsequently notifies other users in the area so they can contact law enforcement if they have additional information. That site has led to over 200 arrests and the recovery of $1.4 million in scrap metal of all kinds, not necessarily all from stolen art.

The vandalism of Mark Twain’s grave and the theft of Ryan McGinness’ New York City street signs are just two examples of the countless number of idiotic, senseless actions taken against art, often because that art is made of metal. As the prices for art and metal scrap continue rising, we can expect to learn of more and more illegal takings of artworks more prized for their provenance, aesthetic and cultural value than their salvage wroth. These basic crimes are brazen acts that destroy art, its value, and rob the community of valuable cultural experiences but they are not without redress. Stewardship of public works and memorials as well as outreach to the metal scrap facilities may help reduce the irreversible loss of cultural artifacts. Existing law may need to be revised to deliver more exacting and weighty consequences to more effectively punish offenders and deter others from committing similar acts.

 Selected sources:

About the author: Kristen is a recent graduate of Villanova University School of Law where she pursued her interest in art law in her research, at the Tulane-Siena Institute for International Law, Cultural Heritage, & the Arts, and at the National Cultural Heritage Law Moot Court Competition at the DePaul University College of Law.

Funding Public Art with Brick and Mortar: The Success and Failure of “Percent for Art” Laws

Jorge Luis Rodriguez, Growth (1985)

Jorge Luis Rodriguez, Growth (1985)

By Emma Kleiner*

Although the thought of East Harlem in 1985 may not immediately spark considerations of aesthetics and community, that was the location and date of the first Percent for Art Project in New York City. In that year, Jorge Luis Rodriguez’s Growth was unveiled there in the East Harlem Artpark, a sculpture dedicated to the intersection of nature and man. Funding for public art works historically came from various sources, including private donors and nonprofit organizations. However, since 1982, New York City’s Percent for Art (PFA) law mandates that one percent of the budget for certain building projects be set aside for public art. Former New York City Mayor Ed Koch, who initiated the law, stated: “For generations to come, it’s a wonderful thing, and I’m very proud of that.” This type of public art law has been mirrored across the nation by many cities and states, and this article analyzes the structure of what makes a successful Percent for Art law. 

New York City’s Percent for Art Program remains one of the strongest in the nation as it strives to bring public art to all corners of the city. Other states, counties, and municipalities around the nation with similar laws include: Chapel Hill, North Carolina; New Haven, Connecticut; Pittsburgh, Pennsylvania; Philadelphia, Pennsylvania; Oro Valley, Arizona. The laws in these cities follow the PFA theme but vary in terms how each program and disbursement is structured and carried out. For example, in some cases, as with the law in New York City, only municipal or City-funded construction projects are mandated to abide by the PFA law, but in other cases, as with the law in Oro Valley, Arizona, public art is compulsory for “all new non-residential and public development projects.” While some public art laws have flourished, like the one in New York City, others have floundered and never gained a strong foothold in the community, like the one in Pittsburgh.

One main feature of a PFA law that affects its ability to succeed is whether the law creates an automatic set-aside for public art or whether the funding must be actively requested. The divide between these types of PFA laws has become particularly apparent in Pittsburgh. The Pittsburgh ordinance, passed in 1977, ceased being enforced about twenty-five years ago, when the city “began including a public-art line item, of about $50,000, in its annual budgets.” Pittsburgh’s PFA law, which requires publicly funded construction projects to set aside 1% of the cost for public art, has gone unenforced for years, and the public started to petition for the law’s enfoncement. One of the main critiques of Pittsburgh’s law is that it became essentially unenforceable because, as reported by the Pittsburgh City Paper in August 2014, the law “requires the department head overseeing a given construction project to actively request artwork for that project — seldom a priority, especially in cash-strapped times.” A possible solution is to make the arts funding automatic, instead of asking for an artwork-funding request that is unlikely to appear in economically difficult times. As a result of Pittsburgh’s PFA law, the community at large has suffered from a deficit of public art and “lost out on thousands, perhaps millions of dollars [worth of art].” The systemic failure of PFA law in Pittsburgh has deprived a city of many public arts projects, and created a situation in which a complete overhaul of the PFA ordinance is necessary in order to enforce any percent for art projects.

In contrast to the situation in Pittsburgh, Oro Valley in Arizona has developed a robust public art law that does not allow developers to shirk the public art requirement. In Oro Valley, the public art law, which has been on the books since 1997, states, “[p]ublic art is a required element for all new non-residential and public development projects.” To aid developers in finding artists and commissioning artwork, Oro Valley’s website contains a public art inventory, which includes the budget for various public art project and the artists’ contact information. The centralization of data has helped Oro Valley’s PFA law to succeed. While making the public art set-aside mandatory in Pittsburgh’s PFA law would be a big step towards enforceability of the law, it would also be necessary to create a database of information about public art in the city. Many developers may have never interacted with public art in the past and may find it daunting to discover and hire an artist. By creating a centralized database with that information, however, developers may be more encouraged in approaching the public art component of their development.

James Turrell, The Color Inside, 84th Skyspace (2008)

James Turrell, The Color Inside, 84th skyspace (2008)

In considering the success and failure of PFA laws, it is critical to be mindful of the many communities that may be impacted by these laws. For example, many Texas universities, including University of Houston, Texas Tech University Systems, University of North Texas, and University of Texas at Austin, have instituted percent for art policies to invigorate the public arts community and cultural landscape on campus. As state legislatures across the country have slashed funding for public universities, oftentimes aimed at cutting the arts and humanities, PFA laws remain a viable way for a public university to inject its campus with an aesthetic component. The strong PFA laws in Texas are stunning examples of how PFA laws can be important for securing public art. The state’s public universities have become some of the most vocal and visual supporters of the law. Several prominent artists have been funded through this program to contribute to the aesthetic landscape of public universities in Texas. James Turrell, who skyrocketed into the public eye over the last few years due to three major retrospective exhibits, recently installed a skyspace at University of Texas at Austin. The universities’ adoption of PFA laws suggest that a strong statewide PFA law that applied to public institutions, including universities, which are chronically underfunded in the arts, could generate the opportunity to for public institutions to grow art collections.

As states, counties, and municipalities struggle to establish strong PFA laws, lawmakers must consider the ultimate enforceability of such laws. The shortcomings of Pittsburgh’s law are good examples of how a PFA law ought to be structured in an enforceable way or risk reaching a tipping point where it is habitually ignored by developers. In contrast, the example provided by Texas demonstrates how the success of a PFA law can bring together different segments of the community to appreciate artwork to which they might not otherwise have access. 

Select Sources:

About the author: Emma Kleiner is a second-year student at Stanford Law School.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.

Federal Judge Issues Restraining Order To Delay Destruction of Public Art at JFK Airport

Yesterday, U.S. District Judge Robert W. Sweet issued a restraining order against the Terminal 1 Group Association, temporarily halting their plan to destroy artist Alice Aycock’s sculptural public work “Star Sifter” to make way for a new food stands at JFK Airport. Installed in 1998, Aycock’s “Star Sifter” has been a fixture at JFK for over ten years. When the Terminal 1 Group Association told the artist and School of Visual Arts professor that they would be destroying her statue, she immediately sued, claiming that the removal of her work constituted breach of contract.

The original commission stated that “Star Shifter” would not be removed unless is it was “required or necessary to do so.” Aycock’s attorneys stated that these circumstances certainly do not qualify. Further, the piece also performs a safety function, serving as a net between the mezzanine from the departure area beyond the security checkpoint.

Aycock is a respected and well-established member of the national artistic community. She has created thirty-two public works, including pieces at other airports and suspended sculptures for the Sacramento Convention Center in California and the Rowland State Government Center in Waterbury, Connecticut. Additionally, MoMA, the Whitney, and the Brooklyn Museum all have Aycock’s works in their collections.

About the situation, Aycock commented that other airports that display her work have consulted her when they want to change the space, informing her in advance and working to preserve and reinstall the work. Distinguishing the behavior of these airports from that of JFK, Aycock told the New York Times, “They prioritize the work of art.”

The hearing to decide on a final injunction against destroying Aycock’s work will take place on Friday.

Read the full New York Times Article: At Kennedy Airport, an Artist Fights to Save Her Sculpture

Czech Artist Jailed for Refusal to Pay Fines for Subversive Public Art Project

In an act that has angered many, Czech artist Roman Tyc has been jailed for refusing to pay fines in relation to his controversial public art work Semaphores. In 2007, Tyc used stencils to replace the green and red signals on 50 streetlights at major intersections in several cities with sardonic images, such as a man urinating, a figure hanging from a rope, a crucifixion victim, and even a man defecating. Tyc was charged with vandalism and was recently ordered to pay 80,000 korunas in damages ($4,260 USD) and 60,000 korunas in fines ($3,200 USD). Tyc agreed to pay the damages but was jailed for his refusal to pay the fines.

Tyc’s actions and the subsequent response of the Czech judiciary sparked heated debate. Some consider Tyc’s work mere seditious destruction of public property. Indeed, Tyc has described his work–and even his imprisonment–as revealing the state as “a dumb, repressive machine.” Tyc also belongs to Ztohoven, a subversive artist collective that seeks to short-circuit official communication networks in order to dismantle their power. The most infamous example of their work was when they hacked into the Czech public television station CT2 and broadcasted fabricated images of nuclear explosions.
Others herald Tyc’s work as courageously fostering important public discussion. Indeed outraged fans and supporters have picked up where Tyc left off; people in many Czech cities have been placing black stickers over traffic lights in homage to the artist’s work. Additionally, more than 6,000 supporters have signed a petition demanding his pardon and release. In another show of support for Tyc, supporters have also brought cakes they had baked to Prague’s Pankrak prison when he was taken there in late February.
Many also feel that the government’s actions here are hypocritical. As local businessman, Petr Vidensky, explained “it’s really disturbing that the Czech president decides to pardon real criminals and that an artist has to spend time in prison.”

Watch a video of Roman Tyc installing “Semaphores”: http://www.youtube.com/watch?v=dr9ji_k1AH4