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.