Thirteen of the artists who painted the Uptown mural are asking a federal judge to keep alive their lawsuit against the Town of Normal while they wait for their work to be moved.
The artists filed the federal lawsuit last spring amid concerns the mural would be demolished when the $30 million Trail East project is built in Uptown Normal. But now that Normal plans to move the mural—not demolish it—the town and Trail East developer last month asked the judge to end the lawsuit, claiming “there is nothing here for the court to decide.”
In a recent filing, the artists’ attorney, William McGrath, asked for the judge to deny that request—called a motion for summary judgment. McGrath said “no one is harmed if the case remains pending until spring (2020),” when construction of Trail East is expected to begin after several delays.
“The controversy right now is just as present as it was when (the artists) filed suit,” McGrath wrote in the Dec. 18 filing. “If summary judgment were to be entered now, the town would appear to be to be under no commitment to refrain from demolishing the mural, which was its stated preference prior to the lawsuit.”
The artists also requested the town and developer, Bush Construction, be required to “provide 14- or 21-days’ notice before any removal, relocation, or destruction begins so that the court can set a status hearing to take place before the date of the planned relocation.”
McGrath also pushed back against the town’s argument that the federal copyright law at issue does not give the artists any say in where the mural is moved. The town and Bush argue the courts have been consistently clear that relocating artwork does not violate the law, called the Visual Artists Rights Act (VARA).
In the Dec. 18 filing, McGrath called VARA's so-called “public presentation” exception narrow—and he said it does not support the town’s “extreme contention that (the artists) have ‘no valid claim as to how or where the mural is moved.’”
“If they relocate the mural to some unsightly or distasteful location, or present it in an ignoble, indecorous, or dishonorable manner that would amount to an intentional or grossly negligent distortion or modification of the work, the limited exception would not apply. Moreover, the very concept of removing and relocating the 120-year-old wall is fraught with the risk of destruction,” he wrote.
The town and Bush themselves have acknowledged they could be back in court if the mural is damaged during its planned relocation.
The judge has already granted a request from the town and Bush to halt discovery—the exchange of evidentiary information—until the motion for summary judgment is resolved.
The mural has become a symbol in a larger debate about Trail East. Normal officials tout the potential economic benefits of the project, which will bring more professionals into Uptown during the workweek. Critics say the town is offering too much in tax breaks to Bush. Others say Uptown Normal will lose some of its history and charm when three Beaufort Street buildings are demolished to make room for Trail East.
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