Hall of Justice
Simon J. Frankel
Judge
Prelim hearings
Yale Law School
Simon serves as chair of the firm's Intellectual Property Rights practice.
The Vaillancourt Fountain is back in the news.
Fifty years after it was completed and some years after the water was shut off, there are plans to remove the fountain as part of construction of a new park in San Francisco. Can the creator or proponents of the fountain somehow preserve it?
The city commissioned the work by Canadian artist Armand Vaillancourt, and it was completed in 1971. The enormous concrete structure at Justin Herman Plaza off the Embarcadero in downtown San Francisco was built when a double-decker freeway looped along the Embarcadero, very close to the fountain. The unfinished concrete of the fountain echoed the freeway.
The fountain itself, a 710-ton sculpture, is an odd and angular array of large square concrete pipes pointed up and down and sideways, with water pouring out of the open tubes -- at least, water used to -- drowning out the sound of the freeway, back in the day. When I was growing up in San Francisco in the 1970s, we loved climbing up to one of the fountain's elevated walkways and being surrounded by concrete and water crashing all around. U2 performed a free concert in front of the fountain in November 1987, where Bono famously spray-painted a message on the concrete -- all captured in a widely-distributed video (he was later cited for graffiti). In the 1990s, skateboarders frequented the fountain and surrounding plaza.
The adjacent freeway collapsed in the Loma Prieta earthquake in October 1989 and was demolished two years later, paving the way for the renaissance of the city's Embarcadero. Some argued the fountain lost its relevance without the freeway; others suggested the fountain took on new relevance as an homage to the absent freeway that had dominated San Francisco's waterfront for decades.
Over time, the fountain deteriorated from deferred maintenance. It's now dry; the water has not poured forth for years, eliminating a key feature of the installation. Calls for removal of the structure intensified, while some called for its restoration.
In August, the Recreation and Park Department asked the Arts Commission to proceed with formal deaccession of the fountain from the City's Civic Art Collection, so that the structure could be removed from the plaza. The request estimated it would cost $29 million to restore the fountain to working order -- nearly as much as the $32.5 million plan to renovate the entire plaza and nearby land to recreate a larger park without the fountain.
Vaillancourt, 96, has spoken out against removal of the fountain, even visiting San Francisco from Canada in May this year to lobby city agencies for its preservation. In August, his lawyer in Quebec sent a letter to the city and relevant agencies demanding they cease any efforts to remove, demolish or dismantle the fountain. The letter threatened legal action and asserted that any destruction or removal of the fountain would "interfere[] with Mr. Vaillancourt's moral rights and with the cultural and public interests associated with this work."
Is there a legal basis for preventing removal of the fountain? "Moral rights," cited in the letter from Vaillancourt's attorney, give artists the right to protect the physical integrity of their works, preventing others from altering or destroying them, even after the works have been sold. Such rights exist widely in continental Europe but have limited application in this country. Starting in the late 1970s, approximately a dozen states (with California in the lead) enacted statutes protecting, to varying degrees, moral rights for works of art. The federal Visual Artists Rights Act (VARA) was passed in 1990, creating federal moral rights. Could Vaillancourt or a third-party assert rights under any of these statutes?
VARA applies to a "work of visual art," which includes a "sculpture," and allows the artist of such work to prevent the "intentional distortion, mutilation, or other modification" of a work of visual art and to prevent its destruction if the work is of "recognized stature." 17 U.S.C. §§ 101, 106A. Is the Vaillancourt Fountain a "sculpture"? It's often described that way (sometimes as a Brutalist or modernist sculpture) and was designed by a recognized artist, so it might qualify. And a court could find it is of "recognized stature," given Vaillancourt's reputation and the attention given the work. However, the protections of VARA only apply to works created after the statute's effective date, June 1, 1991, or works created earlier as to which title did not pass from the artist until after that date. The fountain was purchased by the city long before 1991, so federal law likely does not apply.
Would California's statute? Perhaps. The California Art Preservation Act (CAPA) protects "fine art" (which again includes "sculpture") of "recognized quality." Cal. Civ. Code. §987(b). And CAPA allows an artist to sue to prevent another person from intentionally defacing, mutilating, altering or destroying a work of fine art. Cal. Civ. Code § 987(c). Notably, CAPA applies to "claims based on proscribed acts occurring on or after [Jan. 1, 1980] to works of fine art whenever created." Cal. Civ. Code § 987(j) (emphasis added). And even if Vaillancourt did not live to pursue litigation, the rights under CAPA exist until 50 years after an artist's death and can be asserted by an heir or personal representative. Cal. Civ. Code § 987(g). So, it's possible Vaillancourt could seek relief under California law, assuming he could show the fountain is a sculpture of "recognized quality."
In addition, California has an unusual statute, Civil Code Section 989, which allows a non-profit arts-related entity that has existed for at least three years to sue to preserve the integrity of a work of fine art that is "of recognized quality, and of substantial public interest." Cal. Civ. Code §989(b). Given Vaillancourt's stature as a recognized artist and the publicity given to the fountain and its possible removal, it seems likely the statutory standard would be met here. However, Section 989 provides that "[i]f a work of fine art cannot be removed from real property without substantial physical defacement, mutilation, alteration, or destruction of such work, no action to preserve the integrity of the work of fine art may be brought under this section." Cal. Civ. Code § 989(e). As it's difficult to imagine the Vaillancourt Fountain being removed intact from Justin Herman Plaza, this statute likely would not apply here.
So perhaps Vaillancourt could sue to prevent the city from removing the fountain under CAPA. Whether he will do so, and whether he will succeed if he pursues litigation, remains to be seen. In the meantime, the Vaillancourt Fountain also remains to be seen in downtown San Francisco, but without the water and perhaps not for long. Stay tuned.