Trampled by progress

It was Kevin Price’s first break in the local art scene. In 2000, the then-21-year-old painter and musician convinced local business owner Joey Klein to let him paint a mural on the side of his musical-instrument store, Profound Sound, on the corner of 19th and S streets. For a commission of $3,800 in cash and trade, Price spent the better part of a year creating a large-scale work that would serve as a kind of “living résumé,” landing him more commissions and attracting offers to collaborate with other muralists.

“It was the best résumé you could have,” Price explained. “I’d say I’ve done at least 15 murals around town since then.”

Price’s first mural also provided a splash of color in an otherwise drab and quasi-industrial corner of Midtown. Its 15-by-50-foot expanse featured an array of famous and influential musicians—including Bob Marley and John Coltrane, Herbie Hancock, Patsy Klein and Run D.M.C.—all gathered in a kind of fantasy jam session against a deep-blue background.

During its short life, said Klein, the mural served as a sort of cultural landmark. “There were a lot of bands that had their promo pictures taken in front of that mural,” he recalled. “Sex 66, Shakedown, a lot of fledgling groups.”

Flash forward to the fall of 2003: The neighborhood around 19th and S streets was going through some major changes. A mixed-use project across the street from Profound Sound, featuring a Safeway grocery store, other retail shops and housing, was then under construction.

Profound Sound, having lost business to the Guitar Center chain when it moved to town, had to close its doors. Later that year, the developer of the Safeway project, Paul Petrovich, bought the building.

“I went by there one day to pick up some mail that was still coming to that address,” Klein explained. “The ironic thing was that I had just been thinking that I needed to do something to protect that mural.”

Klein left the building to head downtown to do some other errands. By the time he drove back down 19th Street, the mural was history. “They already had it all taped off and had begun painting,” Klein remembered. “There was some guy across the street, yelling at the painters and calling them assholes,” he added.

Price showed up the same day, after hearing from a friend that his mural was being painted over. Petrovich hadn’t given Price any notice, and when Price arrived, it was too late for him to do anything. Unlike the man across the street, Price initially took the loss philosophically. “At first I just thought, ‘Well, that’s the breaks,’” he said.

But then other local artists advised Price that there are state and federal laws protecting an artist’s work in situations similar to his. Painter Steve Vanoni told Price to call the California Lawyers for the Arts, the same organization to which Vanoni turned several years ago when one of his murals was destroyed by a building owner.

“I felt like he got the shaft,” said Vanoni, who owns Gallery Horse Cow in North Sacramento. “I told him there are laws to keep that kind of thing from happening. People can’t just destroy your art and then just get away with it.”

Price said the California Lawyers for the Arts referred him to some local legal counsel, but he couldn’t afford their fees. The organization did make several attempts to contact Petrovich on his behalf, to set up a meeting with the artist. But Price said those attempts went nowhere.

“Nothing. I guess these guys are so mega-corp they figured they could just blow it off,” Price remarked.

There are, in fact, two laws that could possibly protect an artist like Price: the California Art Preservation Act (CAPA) and the federal Visual Artists Rights Act (VARA). Each sets forth an array of criteria and procedures determining how a property owner who wants to cover, remove or otherwise alter a piece of art should proceed. Both laws allow for an artist to waive his or her rights to protect the art in writing at any time. And neither law protects advertising.

The California law requires that if a mural can be removed and preserved, the property owner must notify the artist so the artist has time to salvage the art, at his or her own expense. But under the California law, if the artwork cannot be removed without destroying either the art or the building, then the artist has no right to protect the work.

The federal law is somewhat more liberal. Although it applies the same notification requirements to any artwork that can be removed from a building, it also says an artist has a right to protect art even if it can’t be removed from the building, provided it is of “recognizable stature.” VARA also says the artist has a right to prevent “any intentional distortion, mutilation or other modification of that work which would be prejudicial to his or her honor or reputation.”

These laws raise a host of questions when it comes to Price’s situation. Arguably, the destruction of his work might be considered a blow to his reputation as an artist. “It was degrading,” Price said. “It would be like if you had written a book, and you spent a year on it and poured your life into it, and somebody came along and made it disappear in a moment.”

The question of “recognized stature” is trickier. “The Supreme Court has ruled that it doesn’t have to be a Picasso to be fine art,” said M.J. Bogatin, an Oakland-based arts attorney and member of the board of directors of the California Lawyers for the Arts.

But Price is not exactly a big name in the arts, even locally. He’s a young muralist who was only 21 when he painted the work in question, his first. The painting was briefly mentioned in the local press but was not widely celebrated.

Even if Price’s mural lacked recognized stature, VARA still requires a property owner to give the artist 90 days’ notice if it can be removed from the building. And although it once was thought impossible to remove a mural that’s acrylic on brick, experts say that advances in restoration and preservation technology are changing that.

“Most acrylic murals are in fact removable, and failing to give notice is a very large risk for a building owner,” said Brooke Oliver, a San Francisco arts-law attorney who has specialized in murals.

Whether Price could have afforded to remove the mural is another question. But the possibility should be enough to prompt any landowner to contact the artist, said Oliver.

“It’s a very small burden,” she added. “For want of a 37-cent stamp, several building owners have paid dearly for violating VARA.”

Bogatin agreed. “The law in these cases is pretty clear. I think the muralist has a good claim.”

“Tell them to bring it,” countered Petrovich, who insists he did nothing wrong by painting over the mural. “I saw no evidence whatsoever that this was some prized piece of art.”

Petrovich has made a reputation locally as one of the few developers willing to make big investments in infill development, on projects that most developers won’t do without city subsidies. During his interview with SN&R, Petrovich bristled at the notion that he had done anything wrong in painting over Price’s mural without permission. He said that his lawyers looked into the laws and found no reason either to preserve the mural or contact Price. “I do the right things in this town, not the wrong things,” he said.

Petrovich has indeed received much adulation in the local press for his Safeway project and the ostentatious, expensive art featured there. It’s hard to miss the imposing 2,500-pound chrome horse, sculpted by a Colorado artist out of recycled car bumpers, that stands guard outside the store’s front doors. And then there’s the 130-foot-tall water tank, which, although it holds no water, did cost more than $850,000. “Now that’s art,” Petrovich boasted. “If I took anything away from that area in terms of art, I think I replaced [it] multiple times.”

Price declined to offer his opinion of the Safeway art but said, “I think it’s a little hypocritical that he’s having these stories written about how he’s this big patron of the arts, while with the other hand he’s whitewashing the work of a local artist,” said Price.

Petrovich, however, wasn’t shy about assessing Price’s work. “There were a lot of people, other business owners, someone from the planning commission, even a city-council member” who complained to Petrovich that the mural was an eyesore and who wanted it gone, he said. “After I did it, they all said, ‘Thank God somebody could afford the paint to get rid of that thing,’” he added.

“I’m sorry, but that’s just bullshit,” said Klein, when told of Petrovich’s claim. Klein insists that the reaction to the mural was mostly positive and that people would come into his shop to ask about the artist. Besides that, Klein remarked, anything is better than the dull white wall that exists now, which he said looks even worse when spray-painted with graffiti.

“I drive by there, and I’ve seen it tagged a bunch of times,” Klein added. “When the mural was there, it never got tagged. We never had to fix anything once.”

Rik Pillson works as the director of the Short Center North, an arts-based adult day facility for people with developmental disabilities. Most of the staff at the Short Center, like Vanoni, are local artists who use their expertise to help disabled people make their own art and then promote their work at local art shows. Pillson said that conflicts between new development and artists are not uncommon.

“Every artist that I work with here has had their work messed with by a developer,” said Pillson. But he thinks some of those conflicts could be avoided simply by talking to the artist.

“I mean, it’s just rude,” said Pillson. “You can see it’s there. You can see that it’s monumental, that it means something to somebody. You can at least find out who did it and contact them. It’s just creating this cultural rift.”

Ellen Taylor, who directs the local chapter of California Lawyers for the Arts, said it’s rare for these kinds of cases to go to court. “We really promote mediation, because it’s a win-win,” she said. “The developer usually wants to create goodwill in the community. This way, they aren’t being forced to do anything but listen and then hopefully come up with some creative solution.”

For Price, the ideal solution would be another commission. “I don’t want to milk it. But I’d like to be compensated for it,” he said. “And I’d like to use the money to create another mural downtown.”

But Petrovich says forget it: no mediation, no compensation. “Look, I’m a principled guy. If I thought I’d really damaged somebody, I’d stand up and take the hit for it. But if I feel like I’m being extorted, I’m going to get my neck bowed up. You won’t find a more determined individual,” he said.

Facing an influential developer with a bowed-up neck and the money to hire lawyers, Price seems outmatched. After all, Petrovich has more than white paint at his disposal.

“It’s frustrating, you know?” mused Price. “Typically, an artist doesn’t have those kinds of resources. And I’ve got other things to worry about: rent and bills.”

Still, he’s annoyed that his artwork was so easily wiped out, simply because Petrovich preferred a white wall. “If we want to hold on to any of our culture down here,” he said, “we’re going to have to fight for it.”