Volume 3, Number 3, Sept. 1981, pp.2-3
Two years ago, WAAC printed the full text of a California Senate bill which had just been signed into law August 1, 1979 known as "The California Art Preservation Act." Since ignorance of the law has never been a valid excuse, this article is an effort to interpret the impact of this Act, which is now Section 987 of the California Civil Code. I will deal particularly with art conservators' liabilities under this Act, and what can be done to reduce that liability.
By way of background, this law gives a living artist or the artist's estate within 50 years after death, the right to commence a civil lawsuit against any person who intentionally defaces, mutilates, alters or destroys a piece of fine art of "recognized quality." But beyond the provision for such intentional actions by an "art terrorist," there is a specific additional provision which charges conservators with a slightly higher standard of care. This standard makes it a bit easier to sue a conservator if the treatment turns out poorly in the artist's eyes, and therefore is the major focus of this article.
Under Section 987(c)(2), conservators are liable if they are legally determined to have been "grossly negligent" in the performance of their duties. The Act goes on to clearly define the highly subjective legal term "gross negligence" as "the exercise of so slight a degree of care as to justify the belief that there was an indifference to the particular work of fine art."
If an artist can sustain this burden of persuading a jury that the conservator was negligently indifferent, then an injunction can be obtained to prevent further mistreatment, actual money damages can be had for losses the artist can prove were suffered as a result of the conservator's efforts, and punitive damages may be levied in particularly strong cases to prevent future mutilations, alterations, etc. by conservators. Additionally, a prevailing artist can collect reasonable attorneys' and expert witnesses' fees.
Although these potential remedies are no doubt frightening, they will actually only apply in extreme cases, and conservators are not lacking in ways of avoiding the problems of the California Art Preservation Act. This is because the definitions of "restore" and "conserve" it contains indicates the legislators' intentions to limit its application.
"Restore" requires that a work be returned "as nearly as is feasible" and "in accordance with prevailing standards" to its original state or condition. Thus, if a damaged or deteriorated piece is treated in the usual manner and sustains unusual damage or is destroyed, no lawsuit based on this section will succeed.
Likewise, by their definition of "conserve" as "appropriate treatment in accordance with prevailing standards in order to maintain the structural integrity to the fullest extent possible in an unchanging state," the lawmakers have made customary methods immune from attack. But, of course, some restoration and conservation methods are novel or unorthodox, and entail varying degrees of risk to the artwork. Should a conservator turn down risky projects to avoid the specter of going to court with an unhappy artist or his or her estate? Hopefully not.
As a general piece of advice, for every project a conservator takes on which involves a living artist, the conservator should seek certain contractual provisions from the owner of the artwork. The Act permits artists to waive their rights under it by an express writing to that effect. It is a good idea if the owner and conservator state in their contract that it is the owner's responsibility to obtain a release or waiver of this Act from the artist. Should the owner fail to obtain a valid waiver, any judgment which the artist might obtain against the conservator (including the conservator's attorneys' fees and other costs of defending a suit based on the Act) can be recovered from the owner under an indemnification provision. Adding such clauses to your standard contracts is really the only way to immunize yourself as conservators from potential hassles with living artists who believe their "moral rights" have been invaded by your treatments. One excellent example of such clauses is contained in the inducement letter provided by Alan Abrams and reprinted in this newsletter.
A major problem still remains with the Act from a conservator's standpoint. This is that no provision has been made for waivers by the estate (heir or personal representative) of the artist. Hence, if the artist has died within the past 50 years without waiving his or her rights under the Act in writing (and, indeed, since this Act is only two years old, he or she may have died before those rights existed) then the only protection for the conservator is a straight contractual promise by the owner (or the owner's agent) of indemnification should the artist's estate sue.
Perhaps this could be changed by amendment of the Act, but it has not to my knowledge been proposed yet.
Conservators should understand that they are relying on the ability of the owner to "cover" the amount of any judgment. They are not totally insulated from lawsuits unless the artist has, in fact, given the owner a signed waiver of rights. If the owner's financial position is shaky, the conservator is still taking the risk of having to pay and being unable to collect from the owner on the indemnification agreement. Thus, the ideal solution to limit conservators' liability under this Act is to make certain a written release is actually obtained, particularly when unorthodox or unusual methods appear necessary to restore a work.
Certain other provisions of the California Art Preservation Act involve artists' moral rights of integrity and paternity. These should be of concern to owners, not conservators, however. It may seem that conservators are being singled out or discriminated against by such a law giving artists the right to intervene or protest the grossly negligent as opposed to intentional alteration or destruction of their work even after that work has been sold, but this is not the case. Rather, by recognizing the moral rights which the European civil law system has long embraced, California's law, introduced by Senator Alan Sieroty, requires primarily that prudent care and high professional standards be used whenever original works of fine art are involved. For the vast majority of conservators, this will present no problem and they have nothing to fear from even the most litigious artists, particularly if written contracts entered into for treatment of such works expressly indemnify against ultimate liability.
The following two-part inducement letter was drawn up by Alan Abrams Esq. It is suggested that each part appear on opposite sides of a single sheet of paper, and that each be addressed to the conservator undertaking the treatment. This is meant to facilitate for the owner of the painting the procurement of the artist's written permission for the treatment. The artist, having been informed of the proposed treatment and risks by the owner, as well as of his rights under the bill, may thereby sign the appropriate side of the letter and waive his rights under the Fine Arts Preservation Act by consenting to the treatment. It is important that permission be obtained and that owner and artist both complete the agreement. However, should the owner fail to do so, the conservator has the limited protection of the owner's agreement to indemnify the conservator against any liability from the artist.
Especially with regard to certain works of art where the conservator may anticipate problems or complications in any aspect of the treatment and/or handling of the work, he or she may very well wish to make both parts of the inducement letter a condition of his or her services. The letters can then become part of the conservator's documentation and offer some protection in the event of a suit.
It should be borne in mind that this inducement letter may not apply or be effective in cases where the artist is deceased and consent is to be secured for the artist's heirs, legatees or representatives, or in a situation where the work of art is part of a building.
(on one side of the page:)
FINE ARTS PRESERVATION ACT AGREEMENT
Name of Conservator
AddressRe: The attached Conservation Agreement relating to ARTIST: TITLE: Medium: Dimensions: Dear (Conservator): As an inducement to you ("Conservator") to enter into the attached Conservation Agreement, the undersigned warrants and agrees: A. That the undersigned has or will secure a written consent to the treatment undertaken by Conservator in the form set forth on the reverse side hereof from either: (i) the Artist of the Work if alive; or (ii) such Artist's heirs, legatees, or personal representatives ("Heirs") if the Artist has been deceased for fifty (50) years or less. If the undersigned has failed to secure binding consent or if the Artist or his or her Heirs for any reason brings any action based on or arising out of such treatment, the undersigned will at all times defend and indemnify Conservator, Conservator's agents and employees and the heirs, successors and representatives of each of the foregoing and hold them harmless from and against any claims, liabilities, losses, and expenses (including attorney's fees) incurred in connection with any claim by Artist or Artist's Heirs. Very truly yours, Owner: Date:
(on the other side of the page:)
Name of Conservator
AddressRe: TITLE OF WORK: Medium: Dimensions: Dear (Conservator): In order to induce you to enter into a conservation agreement pertaining to the above Work, the undersigned, having been fully appraised of any potential right I/we may have under California Civil Code Section 987 (Fine Arts Preservation Act) or any similar law, does hereby waive any right to maintain any action for damages or other relief against Conservator or any agent or employees of the foregoing, based in whole or in part upon such Act and arising out of any loss or damage to the Work occurring while such Work is in the custody of any of the foregoing or during the course of restoration and/or conservation treatment. The undersigned has been fully appraised of the procedures and risks of the proposed restoration and/or conservation treatment and does hereby consent to such treatment. Signed: Date: