Our office recently resolved a very interesting and challenging case regarding the Federal VARA statute (Visual Artist’s Rights Act), which protects an artist’s moral rights for public works of art. The VARA statute provides for damages, both actual and statutory, as well as attorney fees against any party that “distorts or mutilates” a recognized work of art. There is no defense for a party that hired to or even was specifically instructed to, in any way, damage a public work of art. In the case we recently concluded, a well known artist and muralist painted a six story 11,000 square foot mural on the side of a downtown Los Angeles building. The mural was painted between 1978 and 1987, and the artist was never commissioned to do the work.

While the building was being repaired in 2006, a number of subcontractors were hired to do lead abatement, and during the course of this work the mural was painted over. In response, the artist sued a number of parties, including the building owner, building tenant, project manager, the general contractor on the project and two subcontractors. The artist sought $5.5 million in damages, including the  cost  to  move  or  restore  the

mural, harm to his reputation and attorney fees. Our client wasa painting subcontractor who simply did the job they were hired to do. There were no complaints regarding the work of our client and no breach of contract or negligence which would give rise to an indemnification obligation. In fact, we responded to numerous demands to indemnify the general contractor by pursuing indemnity against the general contractor, citing their potential willful misconduct or sole negligence in directing the painiting subcontractor to paint over the mural. This position proved to be pivotal in the ultimate resolution of the case, as the general contractor initially took the position that any settlement would need to be entirely funded by the subcontractors due to the contractual indemnity clause in the contracts, including the contract with our client.

This was a landmark case involving federal statues that had very little precedent. The artist sought to prove that all the parties he sued were aware of this statute prior to ordering the work to be completed. Most of the parties took the position that the other defendants were responsible, and resorted to “finger pointing” rather than defending the

case against the artist. Many of the parties involved also had disputes with their own insurers regarding coverage, making the settlement of the case all the more complicated. Our office took the lead in attacking the artist’s damages claim and working to resolve this contentious and complicated case. We initiated mediations and settlement conferences, as well as discussions among the contractor parties to negotiate the proportionate share of any settlement among the contractors.

Our client was served with two demands, both over $1 million. Ultimately, after several sessions of mediation, we were able to resolve the case through informal settlement negotiations. The total settlement of this case was $1.1 million. We are happy to report that through negotiations between our client, our client’s insurance carrier and the plaintiff, we were able to resolve the matter to everyone’s satisfaction for a figure of only around 7% of the total settlement amount.

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