Home > Journals > LAWREVIEW > Vol. 90 > No. 2 (2016)
Property owners generally have the right to destroy their own property. This Article argues, however, that certain property is so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy. This Article explores existing, yet underutilized, legal solutions a community may use or adapt to preserve public art when that art has become a part of its cultural heritage. Finally, recognizing that preservation has its limits, and that without destruction there will be no space for creation, this Article ultimately sets forth some questions that present challenges to the preservation of public art. This Article focuses on public art owned privately or displayed on private property because of the unique challenges this arrangement poses, specifically, the conflict between private property rights and the public’s interest in preserving its heritage. This Article also limits its discussion to public art destroyed by its de jure owner despite a community’s desire to preserve it; this Article does not discuss public art destroyed by unauthorized vandals, or public art despised by or destroyed at the request of the community. For the purpose of this Article, an appropriate definition of “public art” is art in any media intended and displayed in the public domain, usually outside or in public buildings and accessible to all persons. “Community” is defined as “the people with common interests living in a particular area.”
Part I illustrates recent examples of destruction of public art. Part II examines the inherent conflict between a de jure property owner’s right to destroy his property and the public’s interest in preserving its cultural heritage. Part III examines a community’s interest in public art, and how a work of art may transcend from being merely a piece of private property to becoming part of a community’s heritage. Parts IV through VI explore underutilized legal avenues to preserve public art, including national, state, and local preservation laws, legal claims under property law doctrines, and moral rights laws. Finally, Part VII poses some challenging questions to preservation, especially where preserving public art may contravene artistic intent, inhibit the economic development or growth of a neighborhood, or contradict a property owner’s morals.