Articles Posted in Design Build

Companies that display art or sculptures on their property must be careful about making repairs or alterations; such alterations could affect the artist’s reputation and could put the company on the wrong side of the Visual Arts Law.

Belmont business litigation attorneys understand corporations often purchase works of art or sculpture, or permit art to be displayed on company property. In other cases, the sculpture out front may have come with the property. The last thing you want is to end up in litigation over it. Yet Massachusetts winters can be brutal, damaging outdoor art or otherwise leaving it in disrepair. Companies rarely give any thought to the prospect of being sued over repairs or removal but it is happening in an increasing number of cases. 673264_hammer_to_fall.jpg

Chapter 231 Section 85S of the General Laws of Massachusetts governs the physical alteration or destruction of fine art. It states in part that “the physical alteration or destruction of fine art, which is an expression of the artist’s personality, is detrimental to the artist’s reputation.”

The law defines fine art as painting, drawing, print, sculpture, audio or video tape, film, hologram, photograph, craft object or other work of “recognized quality.” The law prohibits defacement, destruction, mutilation or alteration that is taken either through gross negligence or deliberately.

An artist or his or her representative may take legal action in superior court for damages incurred, special damages and general damages, including injunctive or declaratory relief, actual damages, and all other costs, including attorney and witness fees.

Possible legal issues include whether or not the creator is an “artist;” whether the piece in question is “fine art;” whether it’s in “public view;” and whether gross negligence applies to the condition of the piece in question. The court may rely upon the opinions of art dealers and collects, museums and restorers or conservators.

The law protects the art on behalf of the artist until 50 years after the artist’s death and permits heirs or other legal representatives to take action on the artist’s behalf. The Attorney General may also take legal action on the artist’s behalf if the artist is deceased and the art is in public view.

A building owner may win some relief under the law if the art cannot be removed from the building without destroying the art. However, the owner may also be forbidden from removing a piece of art if to do so would destroy. In such cases, the building owner must notify the artist, or his heirs or representatives, of the intention to remove the art. Such notice provides the artist 90 days to remove the art or pay for its removal.

As we can see, the law is complex. Problems most frequently arise when a business owner or landowner has a piece of art on the property that is in disrepair and decides to take action, either by removing the work or by attempting to make repairs. Many never give any thought to the artist’s rights and the artist may even have long since passed away. However, seeking legal advice is the best course of action.
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For government entities and the construction companies that do business with them, the question often comes up, “What are the prime responsibilities of a recipient of Federal funding (Recipient), in monitoring the performance of General Contractors with respect to Disadvantaged Business Enterprise (DBE) participation and goals?

Design Build Procurements Pursuant to Mass. Gen. Laws c. 149A
In a Design Build contracting situation, a Recipient of Federal funds enters into a master contract with a general contractor (GC), who in turn enters into subsequent subcontracts for the work of the project. It is up to the Recipient to monitor the GC and its subcontracts to ensure that established DBE goals are met or, if they are not, determine whether the GC has exercised good faith efforts to attain those goals. The project’s GC establishes contract goals, as appropriate, for the subcontracts it enters into. Recipients must maintain oversight of the master contractor’s activities to ensure that they are conducted consistent with Federal regulations (and state regulations, if applicable) with respect to DBEs:
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Boston Bar Assosiation