By Jeremy Ogul | Editor
Some called it amazing. Others called it creepy. Regardless of how you saw it, you saw it — the mural depicting a meat cutter at work on the wall of a small office building was impossible to miss as you drove through Mission Valley on Interstate 8.
In late 2013, however, the mural disappeared, and now the artists who created it are suing the United Food and Commercial Workers (UFCW) Local 135, which owns and operates the building upon which the mural hung for 15 years.
The mural, titled “Providing the Feast,” was painted onto a series of aluminum panels that were affixed to the side of the building at 2001 Camino Del Rio South. Its creators, Jeanne and John Whalen, argue in a claim filed Dec. 29 in federal district court that the union violated their state and federal rights by destroying the work without giving them the opportunity to document or preserve it.
The Whalens’ claim is based on a federal statute known as the Visual Artists Rights Act of 1990 and a state law, the California Art Preservation Act.
“Because the mural was destroyed without notice, the Whalens were not able to document the mural further,” the claim reads. “Nor were they provided the opportunity to speak with the defendant about possibly restoring the mural, removing the mural or garnering support from the community for the mural.”
Representatives of UFCW Local 135 did not respond to requests for comment by press time and had not yet filed a response in court.
Jerrold Bodow, one of two attorneys representing the Whalens, said the mural was especially important to them because it was seen by more people every day than perhaps any other piece they had done.
“It was not like a billboard, per se, but it was certainly something that led additional business to them.”
The Whalens, who own La Mesa-based Wall-It Graphics, are seeking damages in an unspecified amount that would account for both the value of the work itself and the loss to their reputation. They have not disclosed the amount of the original commission or the specific terms of their original agreement with UFCW Local 135.
“Providing the Feast” was widely known even outside of Mission Valley. The year after it was erected, it was recognized with an award by the Orchids and Onions Community Awareness Program. A few years ago, San Diego Magazine included the mural in a list titled “100 Works of Art to See Before You Die in San Diego.”
The Whalens also created a famous mural that hung for approximately 15 years on the exterior of the commuter terminal at the San Diego International Airport. Titled “Lucky/Spirit,” it depicted a jumpsuit-clad Charles Lindbergh holding a model airplane.
Airport officials removed that work in 2012, citing the need to remediate a mold problem in the building, but in that case the Whalens’ rights were treated with respect, Bodow said. Airport officials notified the Whalens before removing it and have kept the mural safe in storage since then.
Another local example of an appropriate response to the removal of public art is the case of the “Surfing Madonna,” a mosaic that suddenly appeared on the wall beneath a railroad overpass in Encinitas, Bodow said. There, the city of Encinitas determined that Mark Patterson was the work’s creator and gave him the opportunity to reclaim the work and install it elsewhere. It is now on display near the intersection of Coast Highway 101 and Encinitas Boulevard.
“They honored the artist, which is basically what this law is all about,” Bodow said.
Many property owners are unaware of their obligations to artists under state and federal law, said M.J. Bogatin, an Oakland-based attorney who serves as president of the board of directors of the California Lawyers for the Arts, an advocacy organization.
Artists have “moral rights” that in certain cases supersede the right of a property owner to do whatever they want with a work of art, Bogatin said. These moral rights have long been recognized in Europe (the term moral rights is a translation of the French term droit moral) but were only clearly established in the U.S. about 25 years ago when Congress agreed to join the Berne Convention, an international agreement on copyright law.
Because an artist’s reputation is directly tied to the work they create, artists have a moral right to the integrity of their work and can claim damages if that work is destroyed without their consent, Bogatin said.
Additionally, artists sometimes create public art with the expectation that it will enhance their reputation and therefore create the art at a reduced commission, Bogatin said. If that work is destroyed, then so is the investment the artist made in the work.
Despite the removal of both the “Providing the Feast” and “Lucky/Spirit” murals, the Whalens still have a number of works on public display, including “Puzzled Pelican” at Coronado High School, “Harvest Song” in Valencia, California, and two large murals in a freeway underpass in Riverside.
—Reach Jeremy Ogul by email at firstname.lastname@example.org.