New Mural Program in Santa Ana Sparks Artists’ Rights Debate

Santa Ana officials are investing in restoring aging murals but also have triggered a controversy over wanting the right to destroy them by requiring artists to waive their rights in a recent public art contract. 

This has prompted artists to protest, pointing to state and federal laws that give protections to artists when their artworks are threatened, such as the federal Visual Artist Rights Act of 1990 and the California Art Preservation Act.

After local artists spoke up, council members and arts and culture commissioners themselves have started asking hard questions, prompting high level discussions with Santa Ana City Manager, Alvaro Nuñez. 

“​​I would like to have a meeting with you about what I heard today” said Councilwoman Jesse Lopez during her closing city council comments last week, after hearing comments by grantees of the city’s RestorArt program. 

RestorArt, which is promoted and awarded by the Arts and Culture office of Santa Ana. 

The first RestorArt contract asked artists to waive their VARA rights. After artist pushback, the city sent grantees a second contract without the VARA waiver, which grantees signed. 

Yet months later, grantees have been reissued another contract that includes a VARA waiver, meaning the city wants rights to artworks that already exist; some are on public walls, while others are on private property.

“The City of Santa Ana is committed to supporting and funding public art initiatives and local artists. In fulfilling this commitment, the City maintains an obligation to exercise control and oversight over all City-owned assets, property, and taxpayer funds allocated to municipal arts programs, including the RestorART Mural and Restoration Program,” writes City Spokesman Paul Eakins in an email. 

“The purpose of the program’s contract is to ensure that the City may, when necessary, perform timely maintenance, remove or cover graffiti, implement safety-related repairs, and comply with applicable building codes without exposing the City to potential litigation under VARA.”

But artists are wary of handing over control to a city that has destroyed civic murals in the past. 

One as recent as last year, “Chicano Gothic” by Emigdio Vasquez, was saved after public interest and concerns from residents and community members. 

[Read: Santa Ana Move to Erase Chicano Gothic Mural Triggers Debate]

The waiver has caused confusion and debates among city officials, commissioners and artists. 

All five grantees are declining to sign the contract. 

“It appears all artists have refused to sign and that shows the problematic nature of the current contract,” wrote Arts and Culture Commissioner Vice Chair Joese Hernandez in a text message to Voice of OC. 

“I hope we are able to come to a compromise that protects the city and its artists so as to prevent potential mishaps like almost losing Chicano Gothic,” added Hernandez.  

“And here we are as a city, an art city, or a city that seems to promote the arts, saying that we won’t provide the same protection,” said Arts and Culture Commissioner Debra Russell during her closing comments at the November commission meeting. 

During Santa Ana’s last city council meeting in December, one of the grantees, Alicia Rojas, who was also speaking on behalf of the other grantees, submitted a letter asking for the VARA rights waiver to be removed from the public contract. 

“This waiver will allow the city to remove, alter, or even destroy murals at its sole discretion, including murals on private property, which is confusing,” said Rojas. 

Roja’s comments and grantee letter sparked comments from the dais from Mayor Valerie Amezcua, Mayor Pro-tem Benjamin Vazquez, Councilwoman Jessie Lopez,  and Councilman Johnathan Hernandez, who said they wanted to support artists. 

Who Decides the Fate of Murals, VARA or Cities?  

The federal VARA Act was passed in 1990, which also gives the artist the right to attribution and integrity. 

VARA does not outlaw removal, but it does give artists the chance to save, document, or bargain the removal if a mural needs to be destroyed or moved. 

The whole emphasis of VARA is that the artist has a voice, and often that voice is primary to property rights or to anyone’s arbitrary authority, said art historian Renée Vara, who deals with litigation regarding artists and their works. 

The right to integrity means artists’ public works are protected, especially if they are of recognized stature. 

In California, artists also have another layer of protection, the California Art Preservation Act which mostly overlaps with the protections VARA offers. 

There have been cases filed under VARA, but one of the most prominent, 5Pointz in New York, showed how aerosol artists were able to claim VARA after graffiti murals on the side of buildings were whitewashed by the building owner. 

The owner failed to notify the artists of the removal. 

“The 5Pointz case is also really instructive, because it gives artists the knowledge to collectively bargain. I personally think that’s one of the most powerful stories to come out of 5Pointz,” said Vara, who advised litigation on the 5Pointz case, where artists were awarded over $6 million in damages.  

“It does allow artists to get together, to voice their concerns, to figure out a way to respond. And that’s what VARA does: create a process to provide some boundaries around those discussions. And you know, eyes wide open from there on in.” 

Santa Ana artists are gathering collectively, because they say they do not trust that the city of Santa Ana will save their murals. 

“I think that the city of Santa Ana and the department that is giving this grant really needs to look at a mural ordinance that works for everyone, including the artists, including the community members, and the city,” said grantee Roberto Del Hoyo, who has created work-for-hire murals for the late executive director of the City of Santa Ana’s Parks, Recreation and Community Services Agency, Gerardo Mouet in 2010. 

Dr. Rafael “Rafa” Ramírez Solórzano, Assistant Professor at the Center for Latin American Studies at the University of Florida, grew up in Santa Ana, where some Chicano murals still stand to this day because of community concern. 

[Read: Renewed Iconic Chicano Santa Ana Murals Unveiled]

Solórzano believes that murals should be protected, because murals and histories should be able to stand the test of time, despite whether cities agree with the content or not. 

VARA gives some level of protection to these histories. 

“It’s perhaps a move of the institution, in this case, the city of Santa Ana, really kind of saying ‘we have the right to erase particular historical moments when we deem it to be necessary,’ and that’s scary, because what happens is that’s challenging the whole idea of murals itself,” said Solórzano in a phone interview. 

Murals are also public archives of community histories, almost like a mirror of what neighborhoods saw. The walls were the eyes to freedom movements, like the Chicano movement, says Solórzano.  

“And so if you have an institution saying,’ we actually want to take control of these murals when they go up and when they come down,’ you’re threatening these public archives.” 

Julie Leopo is Voice of OC’s director of photography. You can reach her at jleopo@voiceofoc.org. Follow her on Instagram @julieleopo