Artist, Building Owners Settle Case of Painted-Over Mural

      SAN DIEGO - Prominent Chicano artist Salvador Roberto Torres and the owners of a building where one of Torres' murals was painted over have reached a confidential settlement that ends a two-year court battle.

      Torres filed a federal lawsuit in 2006 after his mural, Dia de Los Muertos, was painted over by property owners the previous year. He claimed damages under the federal Visual Artists' Rights Act, which was created to protect original art works from destruction or defacement. Torres v. Estate of Hill, 06-1094 (S.D. Cal., filed 2006).

      The case never went to trial, and on Wednesday the building owners and Torres announced they had settled. Although the sum wasn't disclosed, a professional art appraiser hired by Torres estimated the damages at more than $200,000, including $55,000 for replacement costs, $110,000 damage to potential future commissions and $56,000 damage to the value of the copyright and lost licensing fees.

      "The lesson for real estate brokers and developers and building owners is, when they see a mural on a building, the artist has rights to that mural. They need to involve the artist in deciding what to do about it, instead of destroying it. Most murals can be removed from the wall and reinstalled in other places," said Torres' attorney, Brooke Oliver, founder of the San Francisco law firm of Oliver, Kattwinkel & Sabec.

      Timothy S. Noon of Noon & Associates in San Diego, who represented Vann Wesson, a San Diego real estate agent who was assisting with the sale of the building that sported the mural, declined comment.

      Lawyers for defendant David Hill, manager of the National Brake Service in the building where the mural was painted over, could not be reached for comment.

      The mural was created by Torres on the brake service building on Imperial Avenue in the Sherman Heights neighborhood of San Diego, with the assistance of his former wife, artist Gloria Robelledo Torres, and Ninas Muralistas, a group of schoolchildren who were learning painting skills. Several local nonprofit groups and local businesses supported the project, considered an example of community revitalization.

      Both the building and the business had been owned by David Hill's father, Stephen Ray Hill, before his death, and, according to the complaint, the mural was painted with his consent over a six-month period in 2005. Then, on June 18 of that year, "without any prior warning," the mural was painted over with dark brown paint.

      Who painted over the mural is unknown. According to a statement released by Oliver, "the parties expressed that they regret that the mural was lost, without ultimately requiring the court to determine how the mural came to be destroyed or admitting liability."

      Torres said that he has never been able to "decipher the true reason" for his mural's destruction.

      "I have been noticing over the years a form of cultural genocide taking place, with the destruction of many of our murals here in San Diego," he said. "They are in bad need of restoration."

      Oliver, who considers this the first major case in San Diego filed under the 1991 Visual Artists' Rights Act, has represented other artists in similar circumstances, including Campusano v. Cort, C-98-3001 (N.D. Cal., filed July 31, 1998). Filed in the Northern District, in San Francisco, the case involved an outdoor painting that had been whitewashed by building owners/developers without notice to the artists holding title. A lawsuit resulted, alleging violations of the act, and the artist won a mandatory injunction and a $200,000 settlement.

      Another Visual Artists' Rights Act case involved Los Angeles artist Kent Twitchell, who had spent nine years creating a multistory mural on a building that was owned by the Department of Labor in downtown Los Angeles. In 2006, workers were rehabbing the structure and painted over the mural.

      Twitchell initially filed a complaint with the owner, asking for up to $5.5 million to restore his work. A lawsuit resulted, involving a dozen defendants, and the parties are negotiating a settlement, according to Twitchell's legal counsel, Bill Brutocao, an attorney with Sheldon Mak Rose & Anderson in Pasadena.

      But Visual Artists' Rights Act lawsuits aren't that common, said Simon J. Frankel, a lawyer in the San Francisco office of Covington & Burling, who also teaches art law at the University of San Francisco School of Law.

      "The statute is only occasionally invoked," Frankel said. "I don't hear of more than a dozen cases around the country in a year, and most are resolved pretty quickly."

      Many artists are not aware of their rights, he said.

      But, Frankel added, "given how long the law has been around, it's surprising that real estate owners don't go to the artists sooner and figure out ways to move the mural or other solutions and to preserve the work in some way."

     Under the act, salvaging the threatened art is done at the expense of the artist, who is supposed to be granted 90 days to make arrangements.

      "When people follow the law, artists will work with them," Oliver said. "There is no heavy burden on the building owner."

      The Dia de Los Muertos mural, depicting Day of the Dead skeletons playing musical instruments, involved a style called punto de cruz.

      "It's similar to a cross point, like when you knit," Torres said. "The wall was made of bricks. We figured out how many squares would fit on a brick. Each brick had four little squares, and each had a color. It was very, very colorful."

      A former farmworker, Torres painted the 1969 Viva La Raza, an oil on canvas, whose visual symbols were adopted as icons of farmworkers and the Chicano art movement.

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