980. (a) (1) The author of any original work of authorship that is
not fixed in any tangible medium of expression has an exclusive
ownership in the representation or expression thereof as against all
persons except one who orginally and independently creates the same
or similar work. A work shall be considered not fixed when it is not
embodied in a tangible medium of expression or when its embodiment in
a tangible medium of expression is not sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration, either
directly or with the aid of a machine or device.
(2) The author of an original work of authorship consisting of a
sound recording initially fixed prior to February 15, 1972, has an
exclusive ownership therein until February 15, 2047, as against all
persons except one who independently makes or duplicates another
sound recording that does not directly or indirectly recapture the
actual sounds fixed in such prior sound recording, but consists
entirely of an independent fixation of other sounds, even though such
sounds imitate or simulate the sounds contained in the prior sound
recording.
(b) The inventor or proprietor of any invention or design, with or
without delineation, or other graphical representation, has an
exclusive ownership therein, and in the representation or expression
thereof, which continues so long as the invention or design and the
representations or expressions thereof made by him remain in his
possession.
981. (a) Unless otherwise agreed, an original work of authorship
not fixed in any tangible medium of expression and in the creation of
which several persons are jointly concerned, is owned by them in
equal proportion.
(b) Unless otherwise agreed, an invention or design in the
production of which several persons are jointly concerned is owned by
them as follows:
(1) If the invention or design is single, in equal proportions.
(2) If it is not single, in proportion to the contribution of
each.
982. (a) The owner of any rights in any original works of
authorship not fixed in any tangible medium of expression may
transfer the ownership therein.
(b) The owner of any invention or design, or of any representation
or expression thereof, may transfer his or her proprietary interest
in it.
(c) Notwithstanding any other provision in this section, whenever
a work of fine art is transferred, whether by sale or on commission
or otherwise, by or on behalf of the artist who created it, or that
artist's heir, legatee, or personal representative, the right of
reproduction thereof is reserved to such artist or such heir,
legatee, or personal representative until it passes into the public
domain by act or operation of law, unless that right is expressly
transferred by a document in writing in which reference is made to
the specific right of reproduction, signed by the owner of the rights
conveyed or that person's duly authorized agent. If the transfer is
pursuant to an employment relationship, the right of reproduction is
transferred to the employer, unless it is expressly reserved in
writing. If the transfer is pursuant to a legacy or inheritance, the
right of reproduction is transferred to the legatee or heir, unless
it is expressly reserved by will or codicil. Nothing contained
herein, however, shall be construed to prohibit the fair use of such
work of fine art.
(d) As used in subdivision (c):
(1) "Fine art" means any work of visual art, including but not
limited to, a drawing, painting, sculpture, mosaic, or photograph, a
work of calligraphy, work of graphic art (including an etching,
lithograph, offset print, silk screen, or a work of graphic art of
like nature), crafts (including crafts in clay, textile, fiber, wood,
metal, plastic, and like materials), or mixed media (including a
collage, assemblage, or any combination of the foregoing art media).
(2) "Artist" means the creator of a work of fine art.
(3) "Right of reproduction", at the present state of commerce and
technology shall be interpreted as including, but shall not be
limited to, the following: reproduction of works of fine art as
prints suitable for framing; facsimile casts of sculpture;
reproductions used for greeting cards; reproductions in general books
and magazines not devoted primarily to art, and in newspapers in
other than art or news sections, when such reproductions in books,
magazines, and newspapers are used for purposes similar to those of
material for which the publishers customarily pay; art films;
television, except from stations operated for educational purposes,
or on programs for educational purposes from all stations; and
reproductions used in any form of advertising, including magazines,
calendars, newspapers, posters, billboards, films or television.
(e) The amendments to this section made at the 1975-76 Regular
Session shall only apply to transfers made on or after January 1,
1976.
983. If the owner of any invention or design intentionally makes it
public, a copy or reproduction may be made public by any person,
without responsiblily to the owner, so far as the law of this state
is concerned.
984. If the owner of an invention or design does not make it
public, any other person subsequently and originally producing the
same thing has the same right therein as the prior inventor, which is
exclusive to the same extent against all persons except the prior
inventor, or those claiming under him.
985. Letters and other private communications in writing belong to
the person to whom they are addressed and delivered; but they cannot
be published against the will of the writer, except by authority of
law.
986. (a) Whenever a work of fine art is sold and the seller resides
in California or the sale takes place in California, the seller or
the seller's agent shall pay to the artist of such work of fine art
or to such artist's agent 5 percent of the amount of such sale. The
right of the artist to receive an amount equal to 5 percent of the
amount of such sale may be waived only by a contract in writing
providing for an amount in excess of 5 percent of the amount of such
sale. An artist may assign the right to collect the royalty payment
provided by this section to another individual or entity. However,
the assignment shall not have the effect of creating a waiver
prohibited by this subdivision.
(1) When a work of fine art is sold at an auction or by a gallery,
dealer, broker, museum, or other person acting as the agent for the
seller the agent shall withhold 5 percent of the amount of the sale,
locate the artist and pay the artist.
(2) If the seller or agent is unable to locate and pay the artist
within 90 days, an amount equal to 5 percent of the amount of the
sale shall be tranferred to the Arts Council.
(3) If a seller or the seller's agent fails to pay an artist the
amount equal to 5 percent of the sale of a work of fine art by the
artist or fails to transfer such amount to the Arts Council, the
artist may bring an action for damages within three years after the
date of sale or one year after the discovery of the sale, whichever
is longer. The prevailing party in any action brought under this
paragraph shall be entitled to reasonable attorney fees, in an amount
as determined by the court.
(4) Moneys received by the council pursuant to this section shall
be deposited in an account in the Special Deposit Fund in the State
Treasury.
(5) The Arts Council shall attempt to locate any artist for whom
money is received pursuant to this section. If the council is unable
to locate the artist and the artist does not file a written claim for
the money received by the council within seven years of the date of
sale of the work of fine art, the right of the artist terminates and
such money shall be transferred to the council for use in acquiring
fine art pursuant to the Art in Public Buildings program set forth in
Chapter 2.1 (commencing with Section 15813) of Part 10b of Division
3 of Title 2, of the Government Code.
(6) Any amounts of money held by any seller or agent for the
payment of artists pursuant to this section shall be exempt from
enforcement of a money judgment by the creditors of the seller or
agent.
(7) Upon the death of an artist, the rights and duties created
under this section shall inure to his or her heirs, legatees, or
personal representative, until the 20th anniversary of the death of
the artist. The provisions of this paragraph shall be applicable only
with respect to an artist who dies after January 1, 1983.
(b) Subdivision (a) shall not apply to any of the following:
(1) To the initial sale of a work of fine art where legal title to
such work at the time of such initial sale is vested in the artist
thereof.
(2) To the resale of a work of fine art for a gross sales price of
less than one thousand dollars ($1,000).
(3) Except as provided in paragraph (7) of subdivision (a), to a
resale after the death of such artist.
(4) To the resale of the work of fine art for a gross sales price
less than the purchase price paid by the seller.
(5) To a transfer of a work of fine art which is exchanged for one
or more works of fine art or for a combination of cash, other
property, and one or more works of fine art where the fair market
value of the property exchanged is less than one thousand dollars
($1,000).
(6) To the resale of a work of fine art by an art dealer to a
purchaser within 10 years of the initial sale of the work of fine art
by the artist to an art dealer, provided all intervening resales are
between art dealers.
(7) To a sale of a work of stained glass artistry where the work
has been permanently attached to real property and is sold as part of
the sale of the real property to which it is attached.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Artist" means the person who creates a work of fine art and
who, at the time of resale, is a citizen of the United States, or a
resident of the state who has resided in the state for a minimum of
two years .
(2) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass.
(3) "Art dealer" means a person who is actively and principally
engaged in or conducting the business of selling works of fine art
for which business such person validly holds a sales tax permit.
(d) This section shall become operative on January 1, 1977, and
shall apply to works of fine art created before and after its
operative date.
(e) If any provision of this section or the application thereof to
any person or circumstance is held invalid for any reason, such
invalidity shall not affect any other provisions or applications of
this section which can be effected, without the invalid provision or
application, and to this end the provisions of this section are
severable.
(f) The amendments to this section enacted during the 1981-82
Regular Session of the Legislature shall apply to transfers of works
of fine art, when created before or after January 1, 1983, that occur
on or after that date.
987. (a) The Legislature hereby finds and declares that the
physical alteration or destruction of fine art, which is an
expression of the artist's personality, is detrimental to the artist'
s reputation, and artists therefore have an interest in protecting
their works of fine art against any alteration or destruction; and
that there is also a public interest in preserving the integrity of
cultural and artistic creations.
(b) As used in this section:
(1) "Artist" means the individual or individuals who create a work
of fine art.
(2) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass, of recognized quality, but shall
not include work prepared under contract for commercial use by its
purchaser.
(3) "Person" means an individual, partnership, corporation,
limited liability company, association or other group, however
organized.
(4) "Frame" means to prepare, or cause to be prepared, a work of
fine art for display in a manner customarily considered to be
appropriate for a work of fine art in the particular medium.
(5) "Restore" means to return, or cause to be returned, a
deteriorated or damaged work of fine art as nearly as is feasible to
its original state or condition, in accordance with prevailing
standards.
(6) "Conserve" means to preserve, or cause to be preserved, a work
of fine art by retarding or preventing deterioration or damage
through appropriate treatment in accordance with prevailing standards
in order to maintain the structural integrity to the fullest extent
possible in an unchanging state.
(7) "Commercial use" means fine art created under a work-for-hire
arrangement for use in advertising, magazines, newspapers, or other
print and electronic media.
(c) (1) No person, except an artist who owns and possesses a work
of fine art which the artist has created, shall intentionally commit,
or authorize the intentional commission of, any physical defacement,
mutilation, alteration, or destruction of a work of fine art.
(2) In addition to the prohibitions contained in paragraph (1), no
person who frames, conserves, or restores a work of fine art shall
commit, or authorize the commission of, any physical defacement,
mutilation, alteration, or destruction of a work of fine art by any
act constituting gross negligence. For purposes of this section, the
term "gross negligence" shall mean 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.
(d) The artist shall retain at all times the right to claim
authorship, or, for a just and valid reason, to disclaim authorship
of his or her work of fine art.
(e) To effectuate the rights created by this section, the artist
may commence an action to recover or obtain any of the following:
(1) Injunctive relief.
(2) Actual damages.
(3) Punitive damages. In the event that punitive damages are
awarded, the court shall, in its discretion, select an organization
or organizations engaged in charitable or educational activities
involving the fine arts in California to receive any punitive
damages.
(4) Reasonable attorneys' and expert witness fees.
(5) Any other relief which the court deems proper.
(f) In determining whether a work of fine art is of recognized
quality, the trier of fact shall rely on the opinions of artists, art
dealers, collectors of fine art, curators of art museums, and other
persons involved with the creation or marketing of fine art.
(g) The rights and duties created under this section:
(1) Shall, with respect to the artist, or if any artist is
deceased, his or her heir, beneficiary, devisee, or personal
representative, exist until the 50th anniversary of the death of the
artist.
(2) Shall exist in addition to any other rights and duties which
may now or in the future be applicable.
(3) Except as provided in paragraph (1) of subdivision (h), may
not be waived except by an instrument in writing expressly so
providing which is signed by the artist.
(h) (1) If a work of fine art cannot be removed from a building
without substantial physical defacement, mutilation, alteration, or
destruction of the work, the rights and duties created under this
section, unless expressly reserved by an instrument in writing signed
by the owner of the building, containing a legal description of the
property and properly recorded, shall be deemed waived. The
instrument, if properly recorded, shall be binding on subsequent
owners of the building.
(2) If the owner of a building wishes to remove a work of fine art
which is a part of the building but which can be removed from the
building without substantial harm to the fine art, and in the course
of or after removal, the owner intends to cause or allow the fine art
to suffer physical defacement, mutilation, alteration, or
destruction, the rights and duties created under this section shall
apply unless the owner has diligently attempted without success to
notify the artist, or, if the artist is deceased, his or her heir,
beneficiary, devisee, or personal representative, in writing of his
or her intended action affecting the work of fine art, or unless he
or she did provide notice and that person failed within 90 days
either to remove the work or to pay for its removal. If the work is
removed at the expense of the artist, his or her heir, beneficiary,
devisee, or personal representative, title to the fine art shall pass
to that person.
(3) If a work of fine art can be removed from a building scheduled
for demolition without substantial physical defacement, mutilation,
alteration, or destruction of the work, and the owner of the building
has notified the owner of the work of fine art of the scheduled
demolition or the owner of the building is the owner of the work of
fine art, and the owner of the work of fine art elects not to remove
the work of fine art, the rights and duties created under this
section shall apply, unless the owner of the building has diligently
attempted without success to notify the artist, or, if the artist is
deceased, his or her heir, beneficiary, devisee, or personal
representative, in writing of the intended action affecting the work
of fine art, or unless he or she did provide notice and that person
failed within 90 days either to remove the work or to pay for its
removal. If the work is removed at the expense of the artist, his or
her heir, beneficiary, devisee, or personal representative, title to
the fine art shall pass to that person.
(4) Nothing in this subdivision shall affect the rights of
authorship created in subdivision (d) of this section.
(i) No action may be maintained to enforce any liability under
this section unless brought within three years of the act complained
of or one year after discovery of the act, whichever is longer.
(j) This section shall become operative on January 1, 1980, and
shall apply to claims based on proscribed acts occurring on or after
that date to works of fine art whenever created.
(k) If any provision of this section or the application thereof to
any person or circumstance is held invalid for any reason, the
invalidity shall not affect any other provisions or applications of
this section which can be effected without the invalid provision or
application, and to this end the provisions of this section are
severable.
988. (a) For the purpose of this section:
(1) The term "artist" means the creator of a work of art.
(2) The term "work of art" means any work of visual or graphic art
of any media including, but not limited to, a painting, print,
drawing, sculpture, craft, photograph, or film.
(b) Whenever an exclusive or nonexclusive conveyance of any right
to reproduce, prepare derivative works based on, distribute copies
of, publicly perform, or publicly display a work of art is made by or
on behalf of the artist who created it or the owner at the time of
the conveyance, ownership of the physical work of art shall remain
with and be reserved to the artist or owner, as the case may be,
unless such right of ownership is expressly transferred by an
instrument, note, memorandum, or other writing, signed by the artist,
the owner, or their duly authorized agent.
(c) Whenever an exclusive or nonexclusive conveyance of any right
to reproduce, prepare derivative works based on, distribute copies
of, publicly perform, or publicly display a work of art is made by or
on behalf of the artist who created it or the owner at the time of
the conveyance, any ambiguity with respect to the nature or extent of
the rights conveyed shall be resolved in favor of the reservation of
rights by the artist or owner, unless in any given case the federal
copyright law provides to the contrary.
989. (a) The Legislature hereby finds and declares that there is a
public interest in preserving the integrity of cultural and artistic
creations.
(b) As used in this section:
(1) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass, of recognized quality, and of
substantial public interest.
(2) "Organization" means a public or private not-for-profit entity
or association, in existence at least three years at the time an
action is filed pursuant to this section, a major purpose of which is
to stage, display, or otherwise present works of art to the public
or to promote the interests of the arts or artists.
(3) "Cost of removal" includes reasonable costs, if any, for the
repair of damage to the real property caused by the removal of the
work of fine art.
(c) An organization acting in the public interest may commence an
action for injunctive relief to preserve or restore the integrity of
a work of fine art from acts prohibited by subdivision (c) of Section
987.
(d) In determining whether a work of fine art is of recognized
quality and of substantial public interest the trier of fact shall
rely on the opinions of those described in subdivision (f) of Section
987.
(e) (1) If 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. However, if an
organization offers some evidence giving rise to a reasonable
likelihood that a work of art can be removed from the real property
without substantial physical defacement, mutilation, alteration, or
destruction of the work, and is prepared to pay the cost of removal
of the work, it may bring a legal action for a determination of this
issue. In that action the organization shall be entitled to
injunctive relief to preserve the integrity of the work of fine art,
but shall also have the burden of proof. The action shall commence
within 30 days after filing. No action may be brought under this
paragraph if the organization's interest in preserving the work of
art is in conflict with an instrument described in paragraph (1) of
subdivision (h) of Section 987.
(2) If the owner of the real property wishes to remove a work of
fine art which is part of the real property, but which can be removed
from the real property without substantial harm to such fine art,
and in the course of or after removal, the owner intends to cause or
allow the fine art to suffer physical defacement, mutilation,
alteration, or destruction the owner shall do the following:
(A) If the artist or artist's heir, legatee, or personal
representative fails to take action to remove the work of fine art
after the notice provided by paragraph (2) of subdivision (h) of
Section 987, the owner shall provide 30 days' notice of his or her
intended action affecting the work of art. The written notice shall
be a display advertisement in a newspaper of general circulation in
the area where the fine art is located. The notice required by this
paragraph may run concurrently with the notice required by
subdivision (h) of Section 987.
(i) If within the 30-day period an organization agrees to remove
the work of fine art and pay the cost of removal of the work, the
payment and removal shall occur within 90 days of the first day of
the 30-day notice.
(ii) If the work is removed at the expense of an organization,
title to the fine art shall pass to that organization.
(B) If an organization does not agree to remove the work of fine
art within the 30-day period or fails to remove and pay the cost of
removal of the work of fine art within the 90-day period the owner
may take the intended action affecting the work of fine art.
(f) To effectuate the rights created by this section, the court
may do the following:
(1) Award reasonable attorney's and expert witness fees to the
prevailing party, in an amount as determined by the court.
(2) Require the organization to post a bond in a reasonable amount
as determined by the court.
(g) No action may be maintained under this section unless brought
within three years of the act complained of or one year after
discovery of such act, whichever is longer.
(h) This section shall become operative on January 1, 1983, and
shall apply to claims based on acts occurring on or after that date
to works of fine art, whenever created.
(i) If any provision of this section or the application thereof to
any person or circumstances is held invalid, such invalidity shall
not affect other provisions or applications of this section which can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
980. (a) (1) The author of any original work of authorship that is
not fixed in any tangible medium of expression has an exclusive
ownership in the representation or expression thereof as against all
persons except one who orginally and independently creates the same
or similar work. A work shall be considered not fixed when it is not
embodied in a tangible medium of expression or when its embodiment in
a tangible medium of expression is not sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration, either
directly or with the aid of a machine or device.
(2) The author of an original work of authorship consisting of a
sound recording initially fixed prior to February 15, 1972, has an
exclusive ownership therein until February 15, 2047, as against all
persons except one who independently makes or duplicates another
sound recording that does not directly or indirectly recapture the
actual sounds fixed in such prior sound recording, but consists
entirely of an independent fixation of other sounds, even though such
sounds imitate or simulate the sounds contained in the prior sound
recording.
(b) The inventor or proprietor of any invention or design, with or
without delineation, or other graphical representation, has an
exclusive ownership therein, and in the representation or expression
thereof, which continues so long as the invention or design and the
representations or expressions thereof made by him remain in his
possession.
981. (a) Unless otherwise agreed, an original work of authorship
not fixed in any tangible medium of expression and in the creation of
which several persons are jointly concerned, is owned by them in
equal proportion.
(b) Unless otherwise agreed, an invention or design in the
production of which several persons are jointly concerned is owned by
them as follows:
(1) If the invention or design is single, in equal proportions.
(2) If it is not single, in proportion to the contribution of
each.
982. (a) The owner of any rights in any original works of
authorship not fixed in any tangible medium of expression may
transfer the ownership therein.
(b) The owner of any invention or design, or of any representation
or expression thereof, may transfer his or her proprietary interest
in it.
(c) Notwithstanding any other provision in this section, whenever
a work of fine art is transferred, whether by sale or on commission
or otherwise, by or on behalf of the artist who created it, or that
artist's heir, legatee, or personal representative, the right of
reproduction thereof is reserved to such artist or such heir,
legatee, or personal representative until it passes into the public
domain by act or operation of law, unless that right is expressly
transferred by a document in writing in which reference is made to
the specific right of reproduction, signed by the owner of the rights
conveyed or that person's duly authorized agent. If the transfer is
pursuant to an employment relationship, the right of reproduction is
transferred to the employer, unless it is expressly reserved in
writing. If the transfer is pursuant to a legacy or inheritance, the
right of reproduction is transferred to the legatee or heir, unless
it is expressly reserved by will or codicil. Nothing contained
herein, however, shall be construed to prohibit the fair use of such
work of fine art.
(d) As used in subdivision (c):
(1) "Fine art" means any work of visual art, including but not
limited to, a drawing, painting, sculpture, mosaic, or photograph, a
work of calligraphy, work of graphic art (including an etching,
lithograph, offset print, silk screen, or a work of graphic art of
like nature), crafts (including crafts in clay, textile, fiber, wood,
metal, plastic, and like materials), or mixed media (including a
collage, assemblage, or any combination of the foregoing art media).
(2) "Artist" means the creator of a work of fine art.
(3) "Right of reproduction", at the present state of commerce and
technology shall be interpreted as including, but shall not be
limited to, the following: reproduction of works of fine art as
prints suitable for framing; facsimile casts of sculpture;
reproductions used for greeting cards; reproductions in general books
and magazines not devoted primarily to art, and in newspapers in
other than art or news sections, when such reproductions in books,
magazines, and newspapers are used for purposes similar to those of
material for which the publishers customarily pay; art films;
television, except from stations operated for educational purposes,
or on programs for educational purposes from all stations; and
reproductions used in any form of advertising, including magazines,
calendars, newspapers, posters, billboards, films or television.
(e) The amendments to this section made at the 1975-76 Regular
Session shall only apply to transfers made on or after January 1,
1976.
983. If the owner of any invention or design intentionally makes it
public, a copy or reproduction may be made public by any person,
without responsiblily to the owner, so far as the law of this state
is concerned.
984. If the owner of an invention or design does not make it
public, any other person subsequently and originally producing the
same thing has the same right therein as the prior inventor, which is
exclusive to the same extent against all persons except the prior
inventor, or those claiming under him.
985. Letters and other private communications in writing belong to
the person to whom they are addressed and delivered; but they cannot
be published against the will of the writer, except by authority of
law.
986. (a) Whenever a work of fine art is sold and the seller resides
in California or the sale takes place in California, the seller or
the seller's agent shall pay to the artist of such work of fine art
or to such artist's agent 5 percent of the amount of such sale. The
right of the artist to receive an amount equal to 5 percent of the
amount of such sale may be waived only by a contract in writing
providing for an amount in excess of 5 percent of the amount of such
sale. An artist may assign the right to collect the royalty payment
provided by this section to another individual or entity. However,
the assignment shall not have the effect of creating a waiver
prohibited by this subdivision.
(1) When a work of fine art is sold at an auction or by a gallery,
dealer, broker, museum, or other person acting as the agent for the
seller the agent shall withhold 5 percent of the amount of the sale,
locate the artist and pay the artist.
(2) If the seller or agent is unable to locate and pay the artist
within 90 days, an amount equal to 5 percent of the amount of the
sale shall be tranferred to the Arts Council.
(3) If a seller or the seller's agent fails to pay an artist the
amount equal to 5 percent of the sale of a work of fine art by the
artist or fails to transfer such amount to the Arts Council, the
artist may bring an action for damages within three years after the
date of sale or one year after the discovery of the sale, whichever
is longer. The prevailing party in any action brought under this
paragraph shall be entitled to reasonable attorney fees, in an amount
as determined by the court.
(4) Moneys received by the council pursuant to this section shall
be deposited in an account in the Special Deposit Fund in the State
Treasury.
(5) The Arts Council shall attempt to locate any artist for whom
money is received pursuant to this section. If the council is unable
to locate the artist and the artist does not file a written claim for
the money received by the council within seven years of the date of
sale of the work of fine art, the right of the artist terminates and
such money shall be transferred to the council for use in acquiring
fine art pursuant to the Art in Public Buildings program set forth in
Chapter 2.1 (commencing with Section 15813) of Part 10b of Division
3 of Title 2, of the Government Code.
(6) Any amounts of money held by any seller or agent for the
payment of artists pursuant to this section shall be exempt from
enforcement of a money judgment by the creditors of the seller or
agent.
(7) Upon the death of an artist, the rights and duties created
under this section shall inure to his or her heirs, legatees, or
personal representative, until the 20th anniversary of the death of
the artist. The provisions of this paragraph shall be applicable only
with respect to an artist who dies after January 1, 1983.
(b) Subdivision (a) shall not apply to any of the following:
(1) To the initial sale of a work of fine art where legal title to
such work at the time of such initial sale is vested in the artist
thereof.
(2) To the resale of a work of fine art for a gross sales price of
less than one thousand dollars ($1,000).
(3) Except as provided in paragraph (7) of subdivision (a), to a
resale after the death of such artist.
(4) To the resale of the work of fine art for a gross sales price
less than the purchase price paid by the seller.
(5) To a transfer of a work of fine art which is exchanged for one
or more works of fine art or for a combination of cash, other
property, and one or more works of fine art where the fair market
value of the property exchanged is less than one thousand dollars
($1,000).
(6) To the resale of a work of fine art by an art dealer to a
purchaser within 10 years of the initial sale of the work of fine art
by the artist to an art dealer, provided all intervening resales are
between art dealers.
(7) To a sale of a work of stained glass artistry where the work
has been permanently attached to real property and is sold as part of
the sale of the real property to which it is attached.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Artist" means the person who creates a work of fine art and
who, at the time of resale, is a citizen of the United States, or a
resident of the state who has resided in the state for a minimum of
two years .
(2) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass.
(3) "Art dealer" means a person who is actively and principally
engaged in or conducting the business of selling works of fine art
for which business such person validly holds a sales tax permit.
(d) This section shall become operative on January 1, 1977, and
shall apply to works of fine art created before and after its
operative date.
(e) If any provision of this section or the application thereof to
any person or circumstance is held invalid for any reason, such
invalidity shall not affect any other provisions or applications of
this section which can be effected, without the invalid provision or
application, and to this end the provisions of this section are
severable.
(f) The amendments to this section enacted during the 1981-82
Regular Session of the Legislature shall apply to transfers of works
of fine art, when created before or after January 1, 1983, that occur
on or after that date.
987. (a) The Legislature hereby finds and declares that the
physical alteration or destruction of fine art, which is an
expression of the artist's personality, is detrimental to the artist'
s reputation, and artists therefore have an interest in protecting
their works of fine art against any alteration or destruction; and
that there is also a public interest in preserving the integrity of
cultural and artistic creations.
(b) As used in this section:
(1) "Artist" means the individual or individuals who create a work
of fine art.
(2) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass, of recognized quality, but shall
not include work prepared under contract for commercial use by its
purchaser.
(3) "Person" means an individual, partnership, corporation,
limited liability company, association or other group, however
organized.
(4) "Frame" means to prepare, or cause to be prepared, a work of
fine art for display in a manner customarily considered to be
appropriate for a work of fine art in the particular medium.
(5) "Restore" means to return, or cause to be returned, a
deteriorated or damaged work of fine art as nearly as is feasible to
its original state or condition, in accordance with prevailing
standards.
(6) "Conserve" means to preserve, or cause to be preserved, a work
of fine art by retarding or preventing deterioration or damage
through appropriate treatment in accordance with prevailing standards
in order to maintain the structural integrity to the fullest extent
possible in an unchanging state.
(7) "Commercial use" means fine art created under a work-for-hire
arrangement for use in advertising, magazines, newspapers, or other
print and electronic media.
(c) (1) No person, except an artist who owns and possesses a work
of fine art which the artist has created, shall intentionally commit,
or authorize the intentional commission of, any physical defacement,
mutilation, alteration, or destruction of a work of fine art.
(2) In addition to the prohibitions contained in paragraph (1), no
person who frames, conserves, or restores a work of fine art shall
commit, or authorize the commission of, any physical defacement,
mutilation, alteration, or destruction of a work of fine art by any
act constituting gross negligence. For purposes of this section, the
term "gross negligence" shall mean 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.
(d) The artist shall retain at all times the right to claim
authorship, or, for a just and valid reason, to disclaim authorship
of his or her work of fine art.
(e) To effectuate the rights created by this section, the artist
may commence an action to recover or obtain any of the following:
(1) Injunctive relief.
(2) Actual damages.
(3) Punitive damages. In the event that punitive damages are
awarded, the court shall, in its discretion, select an organization
or organizations engaged in charitable or educational activities
involving the fine arts in California to receive any punitive
damages.
(4) Reasonable attorneys' and expert witness fees.
(5) Any other relief which the court deems proper.
(f) In determining whether a work of fine art is of recognized
quality, the trier of fact shall rely on the opinions of artists, art
dealers, collectors of fine art, curators of art museums, and other
persons involved with the creation or marketing of fine art.
(g) The rights and duties created under this section:
(1) Shall, with respect to the artist, or if any artist is
deceased, his or her heir, beneficiary, devisee, or personal
representative, exist until the 50th anniversary of the death of the
artist.
(2) Shall exist in addition to any other rights and duties which
may now or in the future be applicable.
(3) Except as provided in paragraph (1) of subdivision (h), may
not be waived except by an instrument in writing expressly so
providing which is signed by the artist.
(h) (1) If a work of fine art cannot be removed from a building
without substantial physical defacement, mutilation, alteration, or
destruction of the work, the rights and duties created under this
section, unless expressly reserved by an instrument in writing signed
by the owner of the building, containing a legal description of the
property and properly recorded, shall be deemed waived. The
instrument, if properly recorded, shall be binding on subsequent
owners of the building.
(2) If the owner of a building wishes to remove a work of fine art
which is a part of the building but which can be removed from the
building without substantial harm to the fine art, and in the course
of or after removal, the owner intends to cause or allow the fine art
to suffer physical defacement, mutilation, alteration, or
destruction, the rights and duties created under this section shall
apply unless the owner has diligently attempted without success to
notify the artist, or, if the artist is deceased, his or her heir,
beneficiary, devisee, or personal representative, in writing of his
or her intended action affecting the work of fine art, or unless he
or she did provide notice and that person failed within 90 days
either to remove the work or to pay for its removal. If the work is
removed at the expense of the artist, his or her heir, beneficiary,
devisee, or personal representative, title to the fine art shall pass
to that person.
(3) If a work of fine art can be removed from a building scheduled
for demolition without substantial physical defacement, mutilation,
alteration, or destruction of the work, and the owner of the building
has notified the owner of the work of fine art of the scheduled
demolition or the owner of the building is the owner of the work of
fine art, and the owner of the work of fine art elects not to remove
the work of fine art, the rights and duties created under this
section shall apply, unless the owner of the building has diligently
attempted without success to notify the artist, or, if the artist is
deceased, his or her heir, beneficiary, devisee, or personal
representative, in writing of the intended action affecting the work
of fine art, or unless he or she did provide notice and that person
failed within 90 days either to remove the work or to pay for its
removal. If the work is removed at the expense of the artist, his or
her heir, beneficiary, devisee, or personal representative, title to
the fine art shall pass to that person.
(4) Nothing in this subdivision shall affect the rights of
authorship created in subdivision (d) of this section.
(i) No action may be maintained to enforce any liability under
this section unless brought within three years of the act complained
of or one year after discovery of the act, whichever is longer.
(j) This section shall become operative on January 1, 1980, and
shall apply to claims based on proscribed acts occurring on or after
that date to works of fine art whenever created.
(k) If any provision of this section or the application thereof to
any person or circumstance is held invalid for any reason, the
invalidity shall not affect any other provisions or applications of
this section which can be effected without the invalid provision or
application, and to this end the provisions of this section are
severable.
988. (a) For the purpose of this section:
(1) The term "artist" means the creator of a work of art.
(2) The term "work of art" means any work of visual or graphic art
of any media including, but not limited to, a painting, print,
drawing, sculpture, craft, photograph, or film.
(b) Whenever an exclusive or nonexclusive conveyance of any right
to reproduce, prepare derivative works based on, distribute copies
of, publicly perform, or publicly display a work of art is made by or
on behalf of the artist who created it or the owner at the time of
the conveyance, ownership of the physical work of art shall remain
with and be reserved to the artist or owner, as the case may be,
unless such right of ownership is expressly transferred by an
instrument, note, memorandum, or other writing, signed by the artist,
the owner, or their duly authorized agent.
(c) Whenever an exclusive or nonexclusive conveyance of any right
to reproduce, prepare derivative works based on, distribute copies
of, publicly perform, or publicly display a work of art is made by or
on behalf of the artist who created it or the owner at the time of
the conveyance, any ambiguity with respect to the nature or extent of
the rights conveyed shall be resolved in favor of the reservation of
rights by the artist or owner, unless in any given case the federal
copyright law provides to the contrary.
989. (a) The Legislature hereby finds and declares that there is a
public interest in preserving the integrity of cultural and artistic
creations.
(b) As used in this section:
(1) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass, of recognized quality, and of
substantial public interest.
(2) "Organization" means a public or private not-for-profit entity
or association, in existence at least three years at the time an
action is filed pursuant to this section, a major purpose of which is
to stage, display, or otherwise present works of art to the public
or to promote the interests of the arts or artists.
(3) "Cost of removal" includes reasonable costs, if any, for the
repair of damage to the real property caused by the removal of the
work of fine art.
(c) An organization acting in the public interest may commence an
action for injunctive relief to preserve or restore the integrity of
a work of fine art from acts prohibited by subdivision (c) of Section
987.
(d) In determining whether a work of fine art is of recognized
quality and of substantial public interest the trier of fact shall
rely on the opinions of those described in subdivision (f) of Section
987.
(e) (1) If 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. However, if an
organization offers some evidence giving rise to a reasonable
likelihood that a work of art can be removed from the real property
without substantial physical defacement, mutilation, alteration, or
destruction of the work, and is prepared to pay the cost of removal
of the work, it may bring a legal action for a determination of this
issue. In that action the organization shall be entitled to
injunctive relief to preserve the integrity of the work of fine art,
but shall also have the burden of proof. The action shall commence
within 30 days after filing. No action may be brought under this
paragraph if the organization's interest in preserving the work of
art is in conflict with an instrument described in paragraph (1) of
subdivision (h) of Section 987.
(2) If the owner of the real property wishes to remove a work of
fine art which is part of the real property, but which can be removed
from the real property without substantial harm to such fine art,
and in the course of or after removal, the owner intends to cause or
allow the fine art to suffer physical defacement, mutilation,
alteration, or destruction the owner shall do the following:
(A) If the artist or artist's heir, legatee, or personal
representative fails to take action to remove the work of fine art
after the notice provided by paragraph (2) of subdivision (h) of
Section 987, the owner shall provide 30 days' notice of his or her
intended action affecting the work of art. The written notice shall
be a display advertisement in a newspaper of general circulation in
the area where the fine art is located. The notice required by this
paragraph may run concurrently with the notice required by
subdivision (h) of Section 987.
(i) If within the 30-day period an organization agrees to remove
the work of fine art and pay the cost of removal of the work, the
payment and removal shall occur within 90 days of the first day of
the 30-day notice.
(ii) If the work is removed at the expense of an organization,
title to the fine art shall pass to that organization.
(B) If an organization does not agree to remove the work of fine
art within the 30-day period or fails to remove and pay the cost of
removal of the work of fine art within the 90-day period the owner
may take the intended action affecting the work of fine art.
(f) To effectuate the rights created by this section, the court
may do the following:
(1) Award reasonable attorney's and expert witness fees to the
prevailing party, in an amount as determined by the court.
(2) Require the organization to post a bond in a reasonable amount
as determined by the court.
(g) No action may be maintained under this section unless brought
within three years of the act complained of or one year after
discovery of such act, whichever is longer.
(h) This section shall become operative on January 1, 1983, and
shall apply to claims based on acts occurring on or after that date
to works of fine art, whenever created.
(i) If any provision of this section or the application thereof to
any person or circumstances is held invalid, such invalidity shall
not affect other provisions or applications of this section which can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
980. (a) (1) The author of any original work of authorship that is
not fixed in any tangible medium of expression has an exclusive
ownership in the representation or expression thereof as against all
persons except one who orginally and independently creates the same
or similar work. A work shall be considered not fixed when it is not
embodied in a tangible medium of expression or when its embodiment in
a tangible medium of expression is not sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration, either
directly or with the aid of a machine or device.
(2) The author of an original work of authorship consisting of a
sound recording initially fixed prior to February 15, 1972, has an
exclusive ownership therein until February 15, 2047, as against all
persons except one who independently makes or duplicates another
sound recording that does not directly or indirectly recapture the
actual sounds fixed in such prior sound recording, but consists
entirely of an independent fixation of other sounds, even though such
sounds imitate or simulate the sounds contained in the prior sound
recording.
(b) The inventor or proprietor of any invention or design, with or
without delineation, or other graphical representation, has an
exclusive ownership therein, and in the representation or expression
thereof, which continues so long as the invention or design and the
representations or expressions thereof made by him remain in his
possession.
981. (a) Unless otherwise agreed, an original work of authorship
not fixed in any tangible medium of expression and in the creation of
which several persons are jointly concerned, is owned by them in
equal proportion.
(b) Unless otherwise agreed, an invention or design in the
production of which several persons are jointly concerned is owned by
them as follows:
(1) If the invention or design is single, in equal proportions.
(2) If it is not single, in proportion to the contribution of
each.
982. (a) The owner of any rights in any original works of
authorship not fixed in any tangible medium of expression may
transfer the ownership therein.
(b) The owner of any invention or design, or of any representation
or expression thereof, may transfer his or her proprietary interest
in it.
(c) Notwithstanding any other provision in this section, whenever
a work of fine art is transferred, whether by sale or on commission
or otherwise, by or on behalf of the artist who created it, or that
artist's heir, legatee, or personal representative, the right of
reproduction thereof is reserved to such artist or such heir,
legatee, or personal representative until it passes into the public
domain by act or operation of law, unless that right is expressly
transferred by a document in writing in which reference is made to
the specific right of reproduction, signed by the owner of the rights
conveyed or that person's duly authorized agent. If the transfer is
pursuant to an employment relationship, the right of reproduction is
transferred to the employer, unless it is expressly reserved in
writing. If the transfer is pursuant to a legacy or inheritance, the
right of reproduction is transferred to the legatee or heir, unless
it is expressly reserved by will or codicil. Nothing contained
herein, however, shall be construed to prohibit the fair use of such
work of fine art.
(d) As used in subdivision (c):
(1) "Fine art" means any work of visual art, including but not
limited to, a drawing, painting, sculpture, mosaic, or photograph, a
work of calligraphy, work of graphic art (including an etching,
lithograph, offset print, silk screen, or a work of graphic art of
like nature), crafts (including crafts in clay, textile, fiber, wood,
metal, plastic, and like materials), or mixed media (including a
collage, assemblage, or any combination of the foregoing art media).
(2) "Artist" means the creator of a work of fine art.
(3) "Right of reproduction", at the present state of commerce and
technology shall be interpreted as including, but shall not be
limited to, the following: reproduction of works of fine art as
prints suitable for framing; facsimile casts of sculpture;
reproductions used for greeting cards; reproductions in general books
and magazines not devoted primarily to art, and in newspapers in
other than art or news sections, when such reproductions in books,
magazines, and newspapers are used for purposes similar to those of
material for which the publishers customarily pay; art films;
television, except from stations operated for educational purposes,
or on programs for educational purposes from all stations; and
reproductions used in any form of advertising, including magazines,
calendars, newspapers, posters, billboards, films or television.
(e) The amendments to this section made at the 1975-76 Regular
Session shall only apply to transfers made on or after January 1,
1976.
983. If the owner of any invention or design intentionally makes it
public, a copy or reproduction may be made public by any person,
without responsiblily to the owner, so far as the law of this state
is concerned.
984. If the owner of an invention or design does not make it
public, any other person subsequently and originally producing the
same thing has the same right therein as the prior inventor, which is
exclusive to the same extent against all persons except the prior
inventor, or those claiming under him.
985. Letters and other private communications in writing belong to
the person to whom they are addressed and delivered; but they cannot
be published against the will of the writer, except by authority of
law.
986. (a) Whenever a work of fine art is sold and the seller resides
in California or the sale takes place in California, the seller or
the seller's agent shall pay to the artist of such work of fine art
or to such artist's agent 5 percent of the amount of such sale. The
right of the artist to receive an amount equal to 5 percent of the
amount of such sale may be waived only by a contract in writing
providing for an amount in excess of 5 percent of the amount of such
sale. An artist may assign the right to collect the royalty payment
provided by this section to another individual or entity. However,
the assignment shall not have the effect of creating a waiver
prohibited by this subdivision.
(1) When a work of fine art is sold at an auction or by a gallery,
dealer, broker, museum, or other person acting as the agent for the
seller the agent shall withhold 5 percent of the amount of the sale,
locate the artist and pay the artist.
(2) If the seller or agent is unable to locate and pay the artist
within 90 days, an amount equal to 5 percent of the amount of the
sale shall be tranferred to the Arts Council.
(3) If a seller or the seller's agent fails to pay an artist the
amount equal to 5 percent of the sale of a work of fine art by the
artist or fails to transfer such amount to the Arts Council, the
artist may bring an action for damages within three years after the
date of sale or one year after the discovery of the sale, whichever
is longer. The prevailing party in any action brought under this
paragraph shall be entitled to reasonable attorney fees, in an amount
as determined by the court.
(4) Moneys received by the council pursuant to this section shall
be deposited in an account in the Special Deposit Fund in the State
Treasury.
(5) The Arts Council shall attempt to locate any artist for whom
money is received pursuant to this section. If the council is unable
to locate the artist and the artist does not file a written claim for
the money received by the council within seven years of the date of
sale of the work of fine art, the right of the artist terminates and
such money shall be transferred to the council for use in acquiring
fine art pursuant to the Art in Public Buildings program set forth in
Chapter 2.1 (commencing with Section 15813) of Part 10b of Division
3 of Title 2, of the Government Code.
(6) Any amounts of money held by any seller or agent for the
payment of artists pursuant to this section shall be exempt from
enforcement of a money judgment by the creditors of the seller or
agent.
(7) Upon the death of an artist, the rights and duties created
under this section shall inure to his or her heirs, legatees, or
personal representative, until the 20th anniversary of the death of
the artist. The provisions of this paragraph shall be applicable only
with respect to an artist who dies after January 1, 1983.
(b) Subdivision (a) shall not apply to any of the following:
(1) To the initial sale of a work of fine art where legal title to
such work at the time of such initial sale is vested in the artist
thereof.
(2) To the resale of a work of fine art for a gross sales price of
less than one thousand dollars ($1,000).
(3) Except as provided in paragraph (7) of subdivision (a), to a
resale after the death of such artist.
(4) To the resale of the work of fine art for a gross sales price
less than the purchase price paid by the seller.
(5) To a transfer of a work of fine art which is exchanged for one
or more works of fine art or for a combination of cash, other
property, and one or more works of fine art where the fair market
value of the property exchanged is less than one thousand dollars
($1,000).
(6) To the resale of a work of fine art by an art dealer to a
purchaser within 10 years of the initial sale of the work of fine art
by the artist to an art dealer, provided all intervening resales are
between art dealers.
(7) To a sale of a work of stained glass artistry where the work
has been permanently attached to real property and is sold as part of
the sale of the real property to which it is attached.
(c) For purposes of this section, the following terms have the
following meanings:
(1) "Artist" means the person who creates a work of fine art and
who, at the time of resale, is a citizen of the United States, or a
resident of the state who has resided in the state for a minimum of
two years .
(2) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass.
(3) "Art dealer" means a person who is actively and principally
engaged in or conducting the business of selling works of fine art
for which business such person validly holds a sales tax permit.
(d) This section shall become operative on January 1, 1977, and
shall apply to works of fine art created before and after its
operative date.
(e) If any provision of this section or the application thereof to
any person or circumstance is held invalid for any reason, such
invalidity shall not affect any other provisions or applications of
this section which can be effected, without the invalid provision or
application, and to this end the provisions of this section are
severable.
(f) The amendments to this section enacted during the 1981-82
Regular Session of the Legislature shall apply to transfers of works
of fine art, when created before or after January 1, 1983, that occur
on or after that date.
987. (a) The Legislature hereby finds and declares that the
physical alteration or destruction of fine art, which is an
expression of the artist's personality, is detrimental to the artist'
s reputation, and artists therefore have an interest in protecting
their works of fine art against any alteration or destruction; and
that there is also a public interest in preserving the integrity of
cultural and artistic creations.
(b) As used in this section:
(1) "Artist" means the individual or individuals who create a work
of fine art.
(2) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass, of recognized quality, but shall
not include work prepared under contract for commercial use by its
purchaser.
(3) "Person" means an individual, partnership, corporation,
limited liability company, association or other group, however
organized.
(4) "Frame" means to prepare, or cause to be prepared, a work of
fine art for display in a manner customarily considered to be
appropriate for a work of fine art in the particular medium.
(5) "Restore" means to return, or cause to be returned, a
deteriorated or damaged work of fine art as nearly as is feasible to
its original state or condition, in accordance with prevailing
standards.
(6) "Conserve" means to preserve, or cause to be preserved, a work
of fine art by retarding or preventing deterioration or damage
through appropriate treatment in accordance with prevailing standards
in order to maintain the structural integrity to the fullest extent
possible in an unchanging state.
(7) "Commercial use" means fine art created under a work-for-hire
arrangement for use in advertising, magazines, newspapers, or other
print and electronic media.
(c) (1) No person, except an artist who owns and possesses a work
of fine art which the artist has created, shall intentionally commit,
or authorize the intentional commission of, any physical defacement,
mutilation, alteration, or destruction of a work of fine art.
(2) In addition to the prohibitions contained in paragraph (1), no
person who frames, conserves, or restores a work of fine art shall
commit, or authorize the commission of, any physical defacement,
mutilation, alteration, or destruction of a work of fine art by any
act constituting gross negligence. For purposes of this section, the
term "gross negligence" shall mean 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.
(d) The artist shall retain at all times the right to claim
authorship, or, for a just and valid reason, to disclaim authorship
of his or her work of fine art.
(e) To effectuate the rights created by this section, the artist
may commence an action to recover or obtain any of the following:
(1) Injunctive relief.
(2) Actual damages.
(3) Punitive damages. In the event that punitive damages are
awarded, the court shall, in its discretion, select an organization
or organizations engaged in charitable or educational activities
involving the fine arts in California to receive any punitive
damages.
(4) Reasonable attorneys' and expert witness fees.
(5) Any other relief which the court deems proper.
(f) In determining whether a work of fine art is of recognized
quality, the trier of fact shall rely on the opinions of artists, art
dealers, collectors of fine art, curators of art museums, and other
persons involved with the creation or marketing of fine art.
(g) The rights and duties created under this section:
(1) Shall, with respect to the artist, or if any artist is
deceased, his or her heir, beneficiary, devisee, or personal
representative, exist until the 50th anniversary of the death of the
artist.
(2) Shall exist in addition to any other rights and duties which
may now or in the future be applicable.
(3) Except as provided in paragraph (1) of subdivision (h), may
not be waived except by an instrument in writing expressly so
providing which is signed by the artist.
(h) (1) If a work of fine art cannot be removed from a building
without substantial physical defacement, mutilation, alteration, or
destruction of the work, the rights and duties created under this
section, unless expressly reserved by an instrument in writing signed
by the owner of the building, containing a legal description of the
property and properly recorded, shall be deemed waived. The
instrument, if properly recorded, shall be binding on subsequent
owners of the building.
(2) If the owner of a building wishes to remove a work of fine art
which is a part of the building but which can be removed from the
building without substantial harm to the fine art, and in the course
of or after removal, the owner intends to cause or allow the fine art
to suffer physical defacement, mutilation, alteration, or
destruction, the rights and duties created under this section shall
apply unless the owner has diligently attempted without success to
notify the artist, or, if the artist is deceased, his or her heir,
beneficiary, devisee, or personal representative, in writing of his
or her intended action affecting the work of fine art, or unless he
or she did provide notice and that person failed within 90 days
either to remove the work or to pay for its removal. If the work is
removed at the expense of the artist, his or her heir, beneficiary,
devisee, or personal representative, title to the fine art shall pass
to that person.
(3) If a work of fine art can be removed from a building scheduled
for demolition without substantial physical defacement, mutilation,
alteration, or destruction of the work, and the owner of the building
has notified the owner of the work of fine art of the scheduled
demolition or the owner of the building is the owner of the work of
fine art, and the owner of the work of fine art elects not to remove
the work of fine art, the rights and duties created under this
section shall apply, unless the owner of the building has diligently
attempted without success to notify the artist, or, if the artist is
deceased, his or her heir, beneficiary, devisee, or personal
representative, in writing of the intended action affecting the work
of fine art, or unless he or she did provide notice and that person
failed within 90 days either to remove the work or to pay for its
removal. If the work is removed at the expense of the artist, his or
her heir, beneficiary, devisee, or personal representative, title to
the fine art shall pass to that person.
(4) Nothing in this subdivision shall affect the rights of
authorship created in subdivision (d) of this section.
(i) No action may be maintained to enforce any liability under
this section unless brought within three years of the act complained
of or one year after discovery of the act, whichever is longer.
(j) This section shall become operative on January 1, 1980, and
shall apply to claims based on proscribed acts occurring on or after
that date to works of fine art whenever created.
(k) If any provision of this section or the application thereof to
any person or circumstance is held invalid for any reason, the
invalidity shall not affect any other provisions or applications of
this section which can be effected without the invalid provision or
application, and to this end the provisions of this section are
severable.
988. (a) For the purpose of this section:
(1) The term "artist" means the creator of a work of art.
(2) The term "work of art" means any work of visual or graphic art
of any media including, but not limited to, a painting, print,
drawing, sculpture, craft, photograph, or film.
(b) Whenever an exclusive or nonexclusive conveyance of any right
to reproduce, prepare derivative works based on, distribute copies
of, publicly perform, or publicly display a work of art is made by or
on behalf of the artist who created it or the owner at the time of
the conveyance, ownership of the physical work of art shall remain
with and be reserved to the artist or owner, as the case may be,
unless such right of ownership is expressly transferred by an
instrument, note, memorandum, or other writing, signed by the artist,
the owner, or their duly authorized agent.
(c) Whenever an exclusive or nonexclusive conveyance of any right
to reproduce, prepare derivative works based on, distribute copies
of, publicly perform, or publicly display a work of art is made by or
on behalf of the artist who created it or the owner at the time of
the conveyance, any ambiguity with respect to the nature or extent of
the rights conveyed shall be resolved in favor of the reservation of
rights by the artist or owner, unless in any given case the federal
copyright law provides to the contrary.
989. (a) The Legislature hereby finds and declares that there is a
public interest in preserving the integrity of cultural and artistic
creations.
(b) As used in this section:
(1) "Fine art" means an original painting, sculpture, or drawing,
or an original work of art in glass, of recognized quality, and of
substantial public interest.
(2) "Organization" means a public or private not-for-profit entity
or association, in existence at least three years at the time an
action is filed pursuant to this section, a major purpose of which is
to stage, display, or otherwise present works of art to the public
or to promote the interests of the arts or artists.
(3) "Cost of removal" includes reasonable costs, if any, for the
repair of damage to the real property caused by the removal of the
work of fine art.
(c) An organization acting in the public interest may commence an
action for injunctive relief to preserve or restore the integrity of
a work of fine art from acts prohibited by subdivision (c) of Section
987.
(d) In determining whether a work of fine art is of recognized
quality and of substantial public interest the trier of fact shall
rely on the opinions of those described in subdivision (f) of Section
987.
(e) (1) If 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. However, if an
organization offers some evidence giving rise to a reasonable
likelihood that a work of art can be removed from the real property
without substantial physical defacement, mutilation, alteration, or
destruction of the work, and is prepared to pay the cost of removal
of the work, it may bring a legal action for a determination of this
issue. In that action the organization shall be entitled to
injunctive relief to preserve the integrity of the work of fine art,
but shall also have the burden of proof. The action shall commence
within 30 days after filing. No action may be brought under this
paragraph if the organization's interest in preserving the work of
art is in conflict with an instrument described in paragraph (1) of
subdivision (h) of Section 987.
(2) If the owner of the real property wishes to remove a work of
fine art which is part of the real property, but which can be removed
from the real property without substantial harm to such fine art,
and in the course of or after removal, the owner intends to cause or
allow the fine art to suffer physical defacement, mutilation,
alteration, or destruction the owner shall do the following:
(A) If the artist or artist's heir, legatee, or personal
representative fails to take action to remove the work of fine art
after the notice provided by paragraph (2) of subdivision (h) of
Section 987, the owner shall provide 30 days' notice of his or her
intended action affecting the work of art. The written notice shall
be a display advertisement in a newspaper of general circulation in
the area where the fine art is located. The notice required by this
paragraph may run concurrently with the notice required by
subdivision (h) of Section 987.
(i) If within the 30-day period an organization agrees to remove
the work of fine art and pay the cost of removal of the work, the
payment and removal shall occur within 90 days of the first day of
the 30-day notice.
(ii) If the work is removed at the expense of an organization,
title to the fine art shall pass to that organization.
(B) If an organization does not agree to remove the work of fine
art within the 30-day period or fails to remove and pay the cost of
removal of the work of fine art within the 90-day period the owner
may take the intended action affecting the work of fine art.
(f) To effectuate the rights created by this section, the court
may do the following:
(1) Award reasonable attorney's and expert witness fees to the
prevailing party, in an amount as determined by the court.
(2) Require the organization to post a bond in a reasonable amount
as determined by the court.
(g) No action may be maintained under this section unless brought
within three years of the act complained of or one year after
discovery of such act, whichever is longer.
(h) This section shall become operative on January 1, 1983, and
shall apply to claims based on acts occurring on or after that date
to works of fine art, whenever created.
(i) If any provision of this section or the application thereof to
any person or circumstances is held invalid, such invalidity shall
not affect other provisions or applications of this section which can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
