PENTICTON, B.C. — An artist who created a nude statue called the Baggage Handler that caused so much controversy that it made international headlines will be awarded nearly $15,000 in damages.
Artist Michael Hermesh sued the City of Penticton and the Art Gallery of the South Okanagan after they refused to pay for the damage done to his piece, which was also known as Frank.
After the statue of the middle-aged man surrounded by several old suitcases was unveiled in 2005, members of Penticton council claimed they were unaware the sculpture was to be nude and a steel plate was placed over the figure's genitals. The controversy spawned international media attention which intensified after vandals lopped off the figure's penis.
The next month, after more vandalism, Mr. Hermesh took the sculpture down for repairs which the city refused to pay.
He was awarded $14,386 total in damages.
He said Tuesday he's satisfied with the judge's ruling, even though it fell short of what he had been seeking.
Rather than the money, he said it was more about affirming the contract between an artist and a more powerful organization such as the city.
“I think there is a very strong message to be said here for the arts community and the city — artists have rights too,” he said.
Mr. Hermesh represented himself during the court proceedings, which wrapped up in February, 2007. He admitted he's relieved the case is settled.
“It has taken up way too much of my time,” he said. “When everything is said and done, I'm sure it took a year of production out of me.”
In her reasons for judgment, Judge Jane Cartwright said by agreeing to temporarily install the sculpture in the traffic circle, the city was in effect “renting” the artwork and Mr. Hermesh retained ownership.
Judge Cartwright ruled the city was negligent in failing to protect Frank from damage.
“At the very least, the city owes a duty of care to protect the sculpture, as it would its own property, and return it to Mr. Hermesh in its original condition,” she stated.
In addition to the vandalism involving Frank's penis, the sculpture's left ankle was fractured and the left calf cracked. A few weeks later, his groin area was spray-painted green. Art gallery employees tried to remove the paint, without consulting Mr. Hermesh, who claims they unintentionally did further damage.
Although named as co-defendant, the art gallery's role was as a facilitator of the project without financial liability.
Counsellor Dan Ashton said Tuesday he's surprised by the judge's decision but it emphasizes the need for council to step aside from decisions regarding public art.
“I think the adjudication of art is better left in the hands of the professionals and not at the council table,” he said.
Although a bronzed version of Frank was purchased by the Red Rooster winery, the original plaster version is now located at a local art gallery. The work is for sale at an undisclosed price.
Mr. Hermesh, who now lives in Summerland, is working on completing a new studio and hopes to start producing works for an upcoming show in Edmonton and an art gallery in White Rock.
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