Money, Art, and Lawyers

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

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 Weeklyhas 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.

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