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Money, Art, and Lawyers 

Razing of long-standing Berkeley Shellfish sculpture creates potential legal dispute

Wednesday, Nov 3 1999
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In what may be the largest settlement of its kind, the owners of the former Lilli Ann garment factory building at 17th and Harrison streets have agreed to pay $200,000 for whitewashing a four-story abstract mural on one of the building's walls, SF Weekly has learned.

"It's an excellent settlement," said Brooke Oliver, attorney for several plaintiffs who had sued for damages, invoking the 9-year-old Visual Artists Rights Act. "It's a tremendous benefit to artists to know that people can't destroy their work."

The 5,000-square-foot mural at 2030 Harrison St. was whitewashed last July by the building's new owner, the Robert J. Cort Trust, to the chagrin of the Mission artistic community. The mural was a colorful mélange of shapes in the style of Joan Miró, evoking a modern Mesoamerican sensibility, residents who remember the mural recall.

Last August, a group of plaintiffs including the son and daughter of the late Jesus "Chuy" Campusano, who created the mural, sued the Cort family, demanding that the mural be returned to its former state. But by the time a judge ordered the mural's restoration, the whitewash had bonded to the mural's paint in such a way that a true restoration would have required an effort of Sistine Chapel proportions. So the Cort family decided to settle, their attorney says.

"We're in the process of settling," says Cort attorney Lawrence Townsend. "There is an agreement that there will be no admission of liability on anybody's part and to conclude all litigation with the plaintiffs."

Before the Lilli Ann settlement, the largest publicly announced damages paid for destruction of public artwork under the Visual Artists Rights Act came in September, when a Chicago appeals court affirmed a ruling that awarded $20,000, plus $130,000 in attorney's fees to artist Jan Martin, whose Indianapolis sculpture was razed to clear land for development.

That decision was heralded as a victory for those who would protect public artwork. Now, news of the Lilli Ann settlement obtained by SF Weekly sets the bar even higher.

"I have not read any court decisions where an artist has been awarded or received in settlement $200,000 for a violation of his artistic rights, or rights of integrity," says Scott Hodes, attorney for Jan Martin. The Lilli Anne mural was commissioned by the city in 1986 at a cost of $40,000.

Most have suffered it: the one moment in life that cruelly promises we'll someday amount to something grand. For some, it's a successful spelling bee; for others, a triumphant 4-H livestock show. For Bryan Egelhoff, it happened 25 years ago, when he shaped 1 1/2 tons of ferroconcrete into a giant, abstract fish/corkscrew/inner ear.

The 14-foot sculpture, Shellfish, once located at Seventh and Dwight streets in Berkeley, became the largest, most famous creation in Egelhoff's quarter-century, on-occasionally, off-for-years sculptural career. Its completion was his life's shining moment. And now it's gone.

The dentist who purchased the corner lot that held the sculpture recently destroyed the piece to make way for a rock garden. Most youthful visions of grandeur fade without recompense; Egelhoff, however, thinks his is worth at least 10 grand.

Citing state and federal laws designed to protect fine artwork, even when it sits on private property, Egelhoff has hired counsel, is demanding $10,000 from the dentist, and threatens to sue for more if negotiations fall through. "We're hoping it won't come to that, but if we must, we must," says Brooke Oliver, the San Francisco attorney who is representing Egelhoff.

Egelhoff is basing his claim to compensation on the Federal Visual Artists Rights Act and the California Art Preservation Act, two statutes drawing from the European sensibility that says fine visual art is part of a nation's patrimony. According to these statutes, property owners may not destroy artworks on their buildings or land without contacting the artists who created them and providing 90 days for the pieces to be moved.

Though some might find the term "art lawyer" oxymoronic, Oliver has enjoyed consistent success representing artists whose works have suffered at the hands of indifferent owners. In San Francisco, Oliver filed suit against the owners of a building at 17th and Harrison streets who had painted over a huge mural (see sidebar).

Earlier this month, San Francisco homeless activists adorned shopping carts with flowers and called them works of art, hoping the art-protection doctrine might prevent police from impounding the carts. That effort may have been a bit of a stretch, but not much of one, Oliver says.

"Both statutes say that even when a recognized work of art is affixed to a building, the building owner cannot deface or destroy that art without giving the artist notice that they want the artwork taken away," Oliver says. "Anyone you talk to says, 'Oh, I kind of know about that piece.' The building owner did not tell Mr. Egelhoff that she was going to destroy it. She didn't give him the opportunity to save the artwork. This piece, which is really important to him and is one of his life's major works, is lost forever."

The Shellfish troubles started this summer, when dentist Susan Caliri bought the building at Dwight and Seventh streets with the idea of starting a Berkeley practice there. The property had long been owned by chiropractor Don Davids, who in 1974 commissioned recent art-school graduate Egelhoff to build an eye-catching sculpture in front of the office. Egelhoff took to the task with zeal, living on-site for nearly a year, building miniature prototypes, welding hundreds of feet of rebar into a 14-foot tall, 14-foot-wide skeleton, clothing it with special wire mesh, then bathing the resulting structure with marine-grade concrete. The technique, commonly used to build the hulls of oceangoing vessels, resulted in a giant, gaudy, ambiguous shape more enduring than any building in its west Berkeley neighborhood. Over the ensuing years, Davids developed a habit of repainting the sculpture a new, outlandish color every couple of months.

Given the Berkeley code of begrudging tolerance, neighbors grew accustomed to, if not exactly fond of, the huge, bizarre construction. "I remember walking by it and saying, 'Huh?'" recalls Bill Trampleasure, a retired Berkeley postman.

"It was all right. Nothing fancy," says Trampleasure's son, Lee, a Berkeley High School science teacher who for several years lived a block away from the sculpture. "It had been there for a long time. It had kind of marked that corner."

Dr. Caliri felt a California scrub garden would do all the marking that was needed.

"The thing I didn't like about the building was the sculpture," Caliri says. "I checked with the city to make sure it was not a historical landmark. They said it was OK to take it down. So after I had all my improvements done so I could take care of my patients, this artist came by one day."

Egelhoff and Caliri enjoyed a few cordial conversations about the sculpture, and the dentist promised to find a new owner for the piece. "He [Egelhoff] said he had no place to put it," says Caliri. "He gave me a hard luck story about his place burning down. This was sad, but it wasn't my fault. I contacted Monterey Bay Aquarium, wrote a bio on his behalf, asked the local marina if they wanted it, and even put an ad in the East Bay Express for a while."

But, she says, she found no takers, and when she called Egelhoff, his number had been disconnected. So she hired some men with backhoes to destroy Shellfish.

As it happens, Egelhoff had suffered a fire in his Berkeley studio right as Caliri was deciding to destroy Shellfish. He lost his tools, his work from two decades prior, and photos of work he had sold over the years. He had to find a new home, and that, he says, is why his telephone had been disconnected. And because he was out of the loop, he also lost the last surviving evidence that he had been, for a moment at least, a promising sculptor.

It was a relatively short moment.

Following Shellfish's completion in 1976, Egelhoff says he fell into a deep depression.

"I was suffering from anxiety, I couldn't sleep. I felt suicidal," he says.

He says he eventually found solace in Scientology, moved to Illinois, and later Colorado, working at a foundry, as a photographer, and in the restoration of antique theaters. But Shellfish always remained, to announce to Berkeley that he had once pursued a different calling.

"If people ask me, 'What have you done?' I could point to that piece and say, 'I did that,'" Egelhoff explains. "She took that away from me."

Whether anything has been taken from anyone, in legal terms, is not clear. Egelhoff's lawyer, who believes state and federal art-preservation law has been broken, is negotiating with Caliri's lawyer, who thinks Egelhoff has no claim. Artists must have possessed a work after 1991, when the Federal Visual Artists Rights Act was enacted, in order to have a claim under that law, Caliri says.

Egelhoff sees the dispute in graver terms.

"It's kind of like having someone murder your firstborn senselessly," he says. "It's had a major impact on me. I try to pick myself and move on and try to find new things to do and to fit into society as it is now and move on with my life."

In the tradition of spelling bee champions, 4-H heroes, and fallen titans through the ages, this is as it should be.

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Matt Smith

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