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.