City weighs in on covered-over mural

In recent days, a downtown property owner painted over a community-produced mural honoring an internationally prominent Springfield artist, the late Robert E. Smith.

The action by David Pere, CEO of FMTM LLC and the person behind FUBAR HQ LLC, registered as the owner of the building at 400 W. Walnut St., has started community dialogue on the role of art and the rights of private property owners.

Pere told Springfield Business Journal March 2 that he had consulted city staff in the Planning and Development office and said he was told that while structural changes would require a permit, there were no code-related issues with paint, so he didn’t have anything to worry about.

Pere said then, and confirmed today, that he could not remember the exact person who consulted or whether it was in person or by phone.

SBJ reached out to the city March 2 to verify Pere’s understanding of his right to paint the mural. In an email the same day, Steve Childers, director of Planning and Development, indicated an issue like this should be approached with care.

“Not sure who the property owner spoke with to obtain their information, but their understanding of the rules specific to this matter are not entirely accurate,” Childers said.

He said there is a difference in the approach to be taken to a building that is on the local historic register and one that is not. The property in question is not, he said.

“Any exterior modification to a property that is on the local historic register, beyond general repair and maintenance, requires a certificate of appropriateness,” Childers said, adding that these are issued by the Landmarks Board unless the change is minor enough for city staff to handle it administratively.

“If this property was on the local historic register, which it is not, and someone wanted to paint the structure (i.e. request to paint unpainted brick or paint over a historically significant feature) they would make that request via the appropriate application process to the Landmarks Board,” Childers said.

Because Pere’s property is not on the local historic register, it is not subject to Landmarks Board review for changes to the exterior, he said.

The city also took up the issue in a Facebook post and included Childers’ comments to SBJ.

The March 2 post acknowledges the disappointment and emotion that followed the removal of the mural, but it also recognized that the property is privately owned.

“Property owners have the ability to make decisions about changes to their buildings within the framework of city regulations,” the post states.

The post encouraged continued dialogue on the issues raised by the mural’s removal.

“We appreciate the passion community members have for public art and downtown character,” it stated. “We also respect the rights and responsibilities of private property owners.

“Moments like this highlight the importance of ongoing conversations about how we celebrate art, preserve history and support property owners all at the same time.”

The post generated 133 comments by 10:30 a.m. today, ranging from remembrances of teachers and students pitching in to help with the mural project to assertions that a private owner can do what he wishes with a building.

One commenter entered the fray with an idea of starting an arts advisory council to aid in collaboration among stakeholders.

Asked for his perspective, Corey Kilburn, an attorney who represents artists on issues pertaining to intellectual property through RoundTable Legal LLC, indicated that some rights exist for public art through the Visual Artists Rights Act of 1990.

“Both property owners and artists have rights,” Kilburn said. “The key is where those rights intersect.”

Federal VARA law grants visual artists what it refers to as moral rights, Kilburn said.

“They include a lot of different things – attribution rights, rights from things being distorted or misinterpreted, and the biggest aspect is the right to prevent intentional destruction,” Kilburn said.

He advised that property owners and potential purchasers take care to discover any documents pertaining to agreements between building owners and muralists.

“Sometimes there’s not – things can get a little gray – but VARA rights exist outside of any contract,” he said.

He noted that not every mural automatically qualifies for VARA protection, but work that has recognized stature through longevity, critical acclaim, media coverage or public engagement may. It’s something that would be determined in a courtroom, he said.

“Seeking counsel before taking any action is always advised,” he said.