Massachusetts § 85S - Physical alteration or destruction of fine art

§ 85S. Physical alteration or destruction of fine art

Section 85S. ( a ) The general court 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 such 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, the following words shall, unless the context clearly requires otherwise, have the following meanings:

''Artist'', the natural person who actually creates a work of fine art but not to include such art as is created by an employee within the scope of his employment. In case of a joint creation of a work of art, each joint creator shall have the rights of an artist with respect to the work of fine art as a whole.

''Fine art'', any original work of visual or graphic art of any media which shall include, but not limited to, any painting, print, drawing, sculpture, craft object, photograph, audio or video tape, film, hologram, or any combination thereof, of recognized quality.

''Gross negligence'', 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.

''Public view'', means on the exterior of a public owned building, or in an interior area of a public building.

( c ) No person, except an artist who owns or 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. As used in this section, intentional physical defacement, mutilation, alteration, or destruction includes any such action taken deliberately or through gross negligence.

( d ) The artist shall retain the right to claim and receive credit under his own name or under a reasonable pseudonym or, for just and valid reason, to disclaim authorship of his work of fine art. Credit shall be determined in accord with the medium of expression and the nature and extent of the artist's contribution to the work of fine art.

( e ) The artist or any bona fide union or other artists' organization authorized in writing by the artist for such purpose may commence an action in the superior court department of the trial court of the commonwealth without having as prerequisites to a suit any need for: (1) damages, already incurred, (2) a showing of special damages, if any, or (3) general damages in any monetary amount to recover or obtain any of the following (i) injunctive relief or declaratory relief, (ii) actual damages, (iii) reasonable attorneys' and expert witness fees and all other costs of the action, or (iv) any other relief which the court deems proper.

( f ) In determining whether a work of fine art is of recognized quality, the court shall rely on the opinions of artist, art dealers, collectors of fine art, curators of art museums, restorers and conservators of fine art and other persons involved with the creation or marketing of fine art.

( g ) The provisions of this section shall, with respect to the artist, or if any artist is deceased, his heir, legatee, or personal representative, continue until the fiftieth anniversary of the death of such artist, continue in addition to any other rights and duties which may now or in the future be applicable, and 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 and refers to specific works with identification and such waiver shall only apply to work so identified.

The attorney general may, if the artist is deceased, assert the rights of the artist on the artist's behalf and commence an action for injunctive relief with respect to any work of art which is in public view.

( h )(1) If a work of fine art cannot be removed from a building without substantial physical defacement, mutilation, alteration, or destruction of such work, the rights and duties created under this section, unless expressly reserved by an instrument in writing signed by the owner of such building and properly recorded, prior to the installation of such art shall be deemed waived. Such instrument, if recorded, shall be binding on subsequent owners of such building.

(2) If the owner of a building wishes to remove a work of fine art which is a part of such building but which can be removed from the building without substantial harm to such fine art, 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 heir, legatee, or personal representative, in writing of his intended action affecting the work of fine art, or unless he did provide notice and that person failed within ninety days either to remove the work or to pay for its removal. If such work is removed at the expense of the artist, his heir, legatee, or personal representative, title to such fine art shall be deemed to be in such person.