By Moncrief                                     S.B. No. 1402

      75R8113 DAK-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to protection and attribution rights of an artist.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Title 6, Civil Practice and Remedies Code, is

 1-5     amended by adding Chapter 139 to read as follows:

 1-6          CHAPTER 139.  PROTECTION AND ATTRIBUTION RIGHTS OF ARTIST

 1-7           Sec. 139.001.  DEFINITIONS.  In this chapter:

 1-8                 (1)  "Alteration" includes physical defacement,

 1-9     mutilation, and modification.  The term does not include, for a

1-10     work of fine art that is produced in limited-edition multiples, a

1-11     change that is an ordinary result of the medium of reproduction.

1-12                 (2)  "Artist" means an individual who creates a work of

1-13     fine art.

1-14                 (3)  "Work of fine art" means an original painting,

1-15     sculpture, drawing, or photograph of recognized quality produced

1-16     individually or in limited-edition multiples of not more than 300

1-17     copies, or single reproductions, that are signed by the artist and

1-18     are either sequentially numbered or specifically authorized by the

1-19     artist.  The term does not include:

1-20                       (A)  work prepared under a work-for-hire

1-21     arrangement for use in advertising, magazines, newspapers, or other

1-22     print and electronic media; or

1-23                       (B)  images intended to be used sequentially in a

1-24     motion picture.

 2-1           Sec. 139.002.  DETERMINATION OF RECOGNIZED QUALITY.  In

 2-2     determining whether a work of fine art is of recognized quality,

 2-3     the trier of fact shall rely on the opinion of artists, curators of

 2-4     art museums, art dealers, collectors of fine art, and other persons

 2-5     involved with the creation or marketing of fine art.

 2-6           Sec. 139.003.  INTENTIONAL ALTERATION OR DESTRUCTION OF WORKS

 2-7     OF ART PROHIBITED.  (a)  A person may not intentionally commit or

 2-8     authorize the intentional commission of the alteration or

 2-9     destruction of a work of fine art.

2-10           (b)  This section does not apply to the intentional

2-11     alteration or destruction of a work of fine art created, owned, and

2-12     possessed by the artist.

2-13           Sec. 139.004.  NEGLIGENT ALTERATION OR DESTRUCTION OF WORKS

2-14     OF ART PROHIBITED.  (a)  A person may not negligently commit or

2-15     cause to be committed the alteration or destruction of a work of

2-16     fine art.

2-17           (b)  A person may not, through negligence in framing,

2-18     conserving, or restoring a work of fine art, commit or cause to be

2-19     committed the alteration or destruction of the work.

2-20           (c)  The alteration or destruction of a work of fine art that

2-21     results from the passage of time or the inherent nature of the

2-22     materials does not by itself violate this section if the alteration

2-23     or destruction was not a result of negligence.

2-24           (d)  In this section:

2-25                 (1)  "Conserve" means to preserve or cause to be

2-26     preserved a work of fine art by retarding or preventing

2-27     deterioration or damage through appropriate treatment in accordance

 3-1     with prevailing standards in order to maintain the physical or

 3-2     structural integrity of the work to the fullest extent possible in

 3-3     an unchanging state.

 3-4                 (2)  "Frame" means to prepare or cause to be prepared a

 3-5     work of fine art for display in a manner customarily considered to

 3-6     be appropriate for the particular medium of the work.

 3-7                 (3)  "Restore" means to return or cause to be returned

 3-8     a deteriorated or damaged work of fine art as nearly as is feasible

 3-9     to its original state or condition in accordance with prevailing

3-10     standards.

3-11           Sec. 139.005.  ATTRIBUTION RIGHTS.  (a)  An artist retains at

3-12     all times the right to attribution of a work of fine art created by

3-13     the artist, including the right to have the artist's name appear on

3-14     or in connection with the work.

3-15           (b)  An artist retains at all times the right to disclaim,

3-16     for a just reason, attribution of a work of fine art created by the

3-17     artist, including the right not to have the artist's name appear on

3-18     or in connection with the work.

3-19           (c)  For purposes of Subsection (b), a just reason includes

3-20     the alteration of the work of fine art by a person other than the

3-21     artist and without the artist's consent.  A just reason does not

3-22     include the alteration of the work of fine art that results from

3-23     the passage of time or the inherent nature of the materials if the

3-24     alteration was not a result of negligence.

3-25           Sec. 139.006.  REMOVAL OF FINE ART FROM BUILDING.  (a)  This

3-26     chapter applies to the alteration or destruction of a work of fine

3-27     art during the removal of the work from a building unless the

 4-1     nature of the work prevents it from being removed from the building

 4-2     without destruction or substantial alteration and:

 4-3                 (1)  the owner of the building has diligently attempted

 4-4     to notify the artist or, if the artist is deceased, the artist's

 4-5     heir, beneficiary, devisee, or personal representative in writing

 4-6     of the intended removal of the work and:

 4-7                       (A)  notification by the owner was not

 4-8     successful; or

 4-9                       (B)  notification by the owner was successful but

4-10     the person notified, not later than the 90th day after the date of

4-11     notification, did not notify the owner of the building of the

4-12     person's intent to remove the work or pay for its removal; or

4-13                 (2)  the owner of the building and the artist have

4-14     expressly provided in a written agreement that this chapter does

4-15     not apply to the removal of the work from the building.

4-16           (b)  An agreement described under Subsection (a)(2) may be

4-17     recorded, as provided by Chapter 12, Property Code, as an

4-18     instrument concerning property in the county in which the building

4-19     is located.  If it is recorded, the agreement binds subsequent

4-20     owners of the building.

4-21           (c)  An artist, or the artist's heir, beneficiary, devisee,

4-22     or personal representative, who removes or pays for the removal of

4-23     a work of fine art under this section becomes the owner of the

4-24     work.

4-25           Sec. 139.007.  DEMOLITION OF BUILDING HOUSING FINE ART.

4-26     (a)  This chapter applies to the intentional alteration or

4-27     destruction of a work of fine art resulting from the demolition of

 5-1     the building containing the work unless:

 5-2                 (1)  the nature of the work prevents it from being

 5-3     removed from the building without destruction or substantial

 5-4     alteration; and

 5-5                 (2)  the owner of the building has diligently attempted

 5-6     to notify the artist or, if the artist is deceased, the artist's

 5-7     heir, beneficiary, devisee, or personal representative in writing

 5-8     of the intended alteration or destruction of the work and:

 5-9                       (A)  notification by the owner was not

5-10     successful; or

5-11                       (B)  notification by the owner was successful but

5-12     the person notified, not later than the 90th day after the date of

5-13     notification, did not notify the owner of the building of the

5-14     person's intent to remove the work or pay for its removal.

5-15           (b)  An artist, or the artist's heir, beneficiary, devisee,

5-16     or personal representative, who removes or pays for the removal of

5-17     a work of fine art under this section becomes the owner of the

5-18     work.

5-19           Sec. 139.008.  REMEDIES.  (a)  An artist may enforce this

5-20     chapter by suing for injunctive relief and actual or exemplary

5-21     damages.

5-22           (b)  A person who violates the rights of an artist

5-23     established under this chapter is liable to the artist for:

5-24                 (1)  the greater of the amount of any damages sustained

5-25     by the artist as a result of the violation or an amount equal to:

5-26                       (A)  $5,000 if the violation was the result of

5-27     negligence on the part of the person; or

 6-1                       (B)  $10,000 if the violation was intentional or

 6-2     the result of gross negligence on the part of the person;

 6-3                 (2)  subject to Subsection (d), the amount of any

 6-4     exemplary damages awarded; and

 6-5                 (3)  reasonable attorney's fees, expert witness fees,

 6-6     and court costs incurred by the artist in establishing the

 6-7     violation and recovering damages.

 6-8           (c)  Damages under Subsection (b)(1) may include:

 6-9                 (1)  mental anguish, pain, and suffering by the artist;

6-10                 (2)  the cost to return a work of fine art that was

6-11     altered to pristine condition; and

6-12                 (3)  damages to the reputation of the artist as a

6-13     result of the violation of this chapter.

6-14           (d)  Notwithstanding Chapter 41, a court shall order that 50

6-15     percent of any exemplary damages awarded in a suit to enforce this

6-16     chapter be paid to a nonprofit charitable organization,  selected

6-17     by the artist and approved by the court, that is involved in

6-18     promoting the fine arts.

6-19           (e)  In this section, "artist" includes  the artist's heir,

6-20     beneficiary, devisee, or personal representative.

6-21           Sec. 139.009.  LIMITATIONS PERIOD.  A person must bring suit

6-22     under this chapter not later than the later of:

6-23                 (1)  three years after the date the act that is the

6-24     subject of the suit occurred; and

6-25                 (2)  if the act that is the subject of the suit could

6-26     not reasonably have been discovered within the limitations period

6-27     of Subdivision (1), one year after the date the act could

 7-1     reasonably have been discovered.

 7-2           Sec. 139.010.  DURATION OF RIGHT.  The rights of an artist

 7-3     established by this chapter remain in effect and enforceable by the

 7-4     artist's heir, beneficiary, devisee, or personal representative

 7-5     until the day after the 50th anniversary of the death of the

 7-6     artist.

 7-7           Sec. 139.011.  RIGHTS ADDITIONAL.  The rights of an artist

 7-8     established by this chapter are in addition to any other rights the

 7-9     artist possesses in a work of fine art created by the artist and do

7-10     not impair any common law rights or remedies that may be available

7-11     to the artist.

7-12           SECTION 2.  (a)  This Act applies to the alteration or

7-13     destruction  of a work of fine art that takes place on or after the

7-14     effective date of this Act, without regard to whether the work was

7-15     created before, on, or after that date.

7-16           (b)  This Act creates attribution rights in a work of fine

7-17     art that may be enforced on or after the effective date of this

7-18     Act, without regard to whether the work was created before, on, or

7-19     after that date.

7-20           (c)  In this section, "alteration" and "work of fine art"

7-21     have the meanings assigned by Section 139.001, Civil Practice and

7-22     Remedies Code, as added by this Act.

7-23           SECTION 3.  The importance of this legislation and the

7-24     crowded condition of the calendars in both houses create an

7-25     emergency and an imperative public necessity that the

7-26     constitutional rule requiring bills to be read on three several

7-27     days in each house be suspended, and this rule is hereby suspended,

 8-1     and that this Act take effect and be in force from and after its

 8-2     passage, and it is so enacted.