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The lighting thief 

In late August 2008, McAllen Arts Council member and Voices of Art publisher David Freeman contacted Blue Star Director and sculptor Bill FitzGibbons to congratulate the artist on his “public art commission in McAllen.” FitzGibbons was perplexed. Unbeknownst to him, an artwork with nearly identical qualities to FitzGibbons’s local “Light Channels” had been installed in an Expressway 83 underpass in the South Texas boomtown.

FitzGibbons’s “Light Channels,” commissioned by the City of San Antonio in 2006, consists of programmed LED lights embedded under the I-37 underpasses at Commerce and Houston that fade from green to blue to red then bright white in 20-minutes cycles. Part of the concept for the project, according to the artist, was to create an inviting passageway from downtown to the near East Side, which is visibly and psychologically cut off from the heart of the city by the freeway. “Light Channels” was unveiled on May 1, 2006, in a three-hour celebration that included remarks by Mayor Hardberger, and a ceremonial “light switch.” The project was featured along with several other local works in a public-art catalog published that year by the city.

Strangely, nobody in McAllen seems to know when exactly McAllen’s lights were installed. Stranger still, the project has never been given a formal unveiling, the idea never credited to any person, and the work never titled.

Officials with the City’s Chamber of Commerce, which oversees its arts commission, and the McAllen City Attorney’s office, say they don’t know where the concept came from. But FitzGibbons says “Light Channels” was stolen directly from his studio in the summer of 2007, after Freeman brought McAllen Arts Council Director Juan Carlos Suarez to get pointers on successful public-arts programs from FitzGibbons. Freeman and FitzGibbons both recall that the discussion with Suarez led naturally to FitzGibbons’s work, including “Light Channels.” The artist says he gave Suarez a copy of the 2006 San Antonio Public Art catalog that features “Light Channels” in full-color photos to take back to McAllen.

FitzGibbons calls the incident an “egregious act against the integrity of the artwork.”

The installation of McAllen’s underpass lighting followed a recent push by McAllen to develop public-art projects to promote a cosmopolitan image, with the help of McAllen’s recently formed Arts Council. According to Suarez, his meeting and discussion with FitzGibbons concerned only “public art policy” and not FitzGibbons’s work in particular. Suarez’s San Antonio visit was followed by two more official tourists, who were reportedly canvassing the state for ideas.

Yet, members of the Arts Council claim to have had no involvement in the project and the most official information released about the installation came in an email from City Commissioner John Ingram to Arts Council member Nancy Moyer. In response to her request for information about the lights, on September 3, 2008, Ingram wrote, “The lights on 10th and Expressway 83 are a pilot project developed by our city staff. They were built by the city using LED (cool lighting) that is inexpensive to build and maintain ... This is a great idea developed by our city staff who are working diligently to make the McAllen `area` distinctive and a great place to live.”

In response to a further inquiry as to who, specifically, was responsible for the idea and the installation, Moyer was given the name of city engineer Pilar Rodriguez. (Rodriguez has not responded to calls for comment.) Another email reply to Moyer’s query came from city engineer Shawn Seale, who on September 6 wrote, “It was McAllen’s Traffic Operations. The same dept. that gives you light, traffic lights, etc. I am on the Traffic and Safety Commission and it was done a month or so ago.”

Attorney Ed Valdespino, who’s assisting the artist in his lawsuit, said that FitzGibbons informed the McAllen representatives he believed would later commission him which manufacturer made the lights and software. McAllen, he says, took that information and “cut Bill `FitzGibbons` out.”

McAllen’s official legal response is a combination of surprise — City Attorney Kevin Pagan says he had never heard of FitzGibbons’s “Light Channels” until he received “A semi-threatening letter from an attorney for an artist in San Antonio, claiming that somehow, putting colored lights underneath an expressway overpass somehow infringed on his rights” — and an aggressive offensive game.

Following the advice of McAllen’s City Commission, Pagan says the city decided to “get a declaration from a court to say we hadn’t violated anybody’s rights.” Pagan argues that the sequence of the lights in McAllen are different from FitzGibbons’s; McAllen’s lights simply fade from one color to the next and don’t involve any “chasing” as “Light Channels” does. Pagan also argues that when Suarez visited FitzGibbons, the ordinance for McAllen’s Arts Council had not yet been adopted and therefore the council was not officially connected with the city.   

FitzGibbons’s lead attorney, Tim Maloney, says the case is fairly straightforward. There are strong similarities between the two projects, which can be easily observed, and the same equipment and software was used in both installations.  Valdespino says that because McAllen filed a preemptive lawsuit against FitzGibbons, it’s the City of McAllen’s burden to prove there is no substantial similarity between the two pieces of art.

Most Arts Council members who spoke with the Current asked to remain anonymous, echoing a common theme among McAllen sources for this story: Retribution would be swift and certain for any finger-pointing. Three members say they believe McAllen stole the idea for its underpass installation from FitzGibbons, but they’re unsure, or unwilling to say, who is responsible for the theft.

“They usually always have pomp and ceremony for public art. If it wasn’t covert, they would have had so much pomp and ceremony out there,” said Freeman. “They didn’t announce it to anybody. Nobody knew about it. It was covert. It was put up in such an unknown kind of a manner that doesn’t reflect any of their standard operating procedures for putting up public art.”

“I think `FitzGibbons` should be compensated,” said one of the council’s founding members, who added that it was “impolite” for the City of McAllen to engage in a lawsuit against FitzGibbons.

“It’s bad ... this is an embarrassment for the whole art community,” concludes Freeman. “In my mind, there’s no doubt as to where `the idea` came from.” •

The parties are scheduled to be in court in early May. Watch for updates on QueBlog, at Elaine Wolff contributed additional reporting to this story.

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