OPINION
This case lies at the intersection of visual-art and commercial property insurance. Appellants Robert J. Cort and the Robert J. Cort Trust (“the Corts”) argue that their property insurance policy gave rise to a duty to defend by their insurer, appel-lee St. Paul Fire and Marine Insurance/Fidelity and Guaranty Insurance Underwriters, Inc. (“St.Paul”),. when the Corts were sued after they covered a mural on the wall of their building. We affirm the district court’s decision that there was. no duty to defend.
In 1986, the City and County of San Francisco commissioned renowned artist Jesus “Chuy” Campusano to paint a mural in San Francisco’s Mission District. The site chosen was the south exterior wall of a former factory building owned by the Lilli Ann Corporation. After six weeks of work, Campusano and his colleague Elias Rocha finished a 46-foot by 46-foot mural of brightly colored geometric abstractions. Over the next decade, the “Lilli Ann mural” became a familiar landmark.
In January 1997, the Lilli Ann Corporation sold the building to the Corts. A little over a year later, in March 1998, the Corts purchased a general liability insurance policy (“the policy”) from St. Paul. In the summer of 1998, the Corts found a tenant for the building and began repairing it. Because the building had several leaks, the repair work included application of an opaque white sealant, “Kel-Bond,” to the exterior walls. The application of the Kel-Bond coating to the south wall of the building in July 1998 effectively covered the Lilli Ann mural.
After the mural was covered, Campusa-no’s children (Campusano died in 1997) and Rocha (collectively, “the artists”) filed a lawsuit against the Corts under the Visual Artists’ Rights Act of 1991 (“VARA”), 17 U.S.C. § 106A, and under the California Art Preservation Act (“CAPA”), Cal. Civ. Code § 987. Both VARA and CAPA prevent the modification or destruction of certain works of art without the consent of the artist. See 17 U.S.C. § 106A(a)(3); Cal. Civ.Code § 987(c). The artists’ complaint alleged that the Corts “intentionally and knowingly altered, mutilated and distorted” the mural without making an effort to notify the artists. The complaint alleged “irreparable damage to the artists’ reputation and prestige in the community” from the loss of the “masterpiece,” as well as lost licensing fees and other revenues. The artists also sued under California’s unfair competition law, Cal. Bus. & Prof. Code § 17200 et seq. (“ § 17200”), alleging an unlawful and fraudulent business practice.
The artists sought $500,000 in damages and an injunction against further damage to the mural. The City and County of San Francisco (“City”), which had paid $40,000 for the creation of the mural, intervened as plaintiff and asserted a claim for violation of CAPA. The parties settled in December 1999. Under the settlement, the plaintiffs agreed to drop their claims and cede control of the mural to the Corts in exchange for $200,000.
When the artists filed their lawsuit, the Corts asked St. Paul to provide a defense pursuant to the policy. The Corts argued that the artists’ complaint came within the policy’s coverage for property damage, personal injury, or advertising injury. St. Paul, however, refused to defend. After several months of correspondence, the Corts filed this action in California state court for breach of contract and bad faith. St. Paul removed to federal district court pursuant to 28 U.S.C. § 1441(b).
The district court granted summary judgment to St. Paul, holding that none of the identified portions of the insurance policy gave rise to a duty to defend. The Corts appeal only the personal injury and advertising injury holdings. We are asked to decide not whether the policy gave rise to a duty to indemnify the Corts for the $200,000 settlement with the artists, but rather whether it gave rise to a duty to defend. The parties do not dispute the material facts.
The interpretation of an insurance policy, as applied to undisputed facts, is a question of law. See Stanford Ranch, Inc. v. Md. Cas. Co.,
II. Duty To Defend
A liability insurer “owes a broad duty to defend its insured against claims that create a potential for indemnity.” Montrose Chem. Corp. v. Superior Court,
When a defense is first tendered, “[t]he question is not whether the allegations of the underlying complaint are meritorious, but rather whether [the] policy terms require [the insurer] to provide a defense against such claims.” Reese v. Travelers Ins. Co.,
If a third party complaint “can by no conceivable theory raise a single issue which could bring it within the policy coverage,” there is no duty to defend. La Jolla Beach & Tennis Club, Inc. v. Indus. Indem. Co.,
The Corts contend on appeal that two provisions of the policy may be construed to cover the artists’ claims. The policy covers “ ‘personal injury’ caused by an offense arising out of your business,” including
(d) Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.
(e) Oral or written publication of material that violates a person’s right to privacy.
The policy also covers “advertising injury,” defined as an “offense committed in the course of advertising your goods, products or services.”
We consider personal injury and advertising injury in turn.
IV. Personal Injury
A. Claim Under VARA
The artists alleged in their complaint that the Corts violated VARA
VARA provides, in relevant part:
(a) Rights of attribution and integrity .... [T]he author of a work of visual art—
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
17 U.S.C. § 106A.
If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the budding without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless—
(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work of visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.
17 U.S.C. § 113(d)(2).
The purpose of VARA is to protect two “moral rights” of artists — the rights of “integrity” and “attribution.” See H.R.Rep. No. 101-514, at 5 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915 (stating that VARA protects rights that “are analogous
In part because moral rights conflict with traditional conjmon law property rights, American law has resisted recognizing moral rights. See Lee v. A.R.T. Co.,
Rights protected by VARA include the right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the artist’s] honor or reputation.” 17 U.S.C. § 106A(a)(3)(A). VARA also gives artists who produce works “of recognized stature” the right to prevent the works’ destruction. 17 U.S.C. § 106A(a)(3)(B). Finally, VARA requires a building owner to notify, or diligently attempt to notify, an artist prior to alteration of visual artwork that is part ■ of a building. 17 U.S.C. § 113(d)(2).
The Corts argue that the substance of the artists’ complaint could have given rise to a claim covered under the personal injury provisions of the policy, and that it therefore triggered a duty to defend. The potentially relevant claims for which personal injury coverage is provided are libel, disparagement, and invasion of privacy.
1.- Libel
Libel is defined under California law as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency o injure him in his occupation.” Cal. Civ. Code § 45. The policy states that coverage is limited to “oral or written publication of material,” but counsel for St. Paul stated at oral argument that the policy covers any libel within the scope of the California statute. Thus, the Corts need not demonstrate that the covered mural constituted a written publication in the sense of written words. They need only demonstrate that it constituted a “printing, picture, effigy, or other fixed representation to the eye.” Under California Civil Code § 45, it would be sufficient for the Corts to show that the obscured mural could constitute a “false ... publication” that had “a tendency to injure [them] in [their] occupation.”
“An essential element of defamation is that the publication in question must contain a false statement of fact.” Savage v. Pac. Gas & Elec. Co.,
The artists did not allege in their complaint that the Corts had published a false statement. The Corts argue, however, that the artists’ claim is tantamount to a claim that the covered mural is a false statement about their artistic expression. It is true that VARA protects an artist from “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” 17 U.S.C. § 106A(a)(3)(A). It is also true that a distortion or mutilation of a work might, in some circumstances, constitute a falsehood in the sense that it would communicate a false impression of the work that the artist produced. See Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L.Rev. 554, 569 (1940) (“[T]o deform his work is to present him to the public as the creator of work not his own, and thus make him subject to criticism for work he has not done.”).
However, the Corts neither distorted nor mutilated the mural. Rather, they covered it with an. opaque white sealant. When the Corts covered the mural, it simply disappeared. Under California libel law, this cannot be construed as “false publication.”
We agree with the Corts that because the white sealant covered the entire south wall of the building and was visible to passers-by, it satisfied the dissemination requirement of publication. But it did not satisfy the requirement that the message conveyed be false. To those who knew that the mural had previously been on the wall of the building, the message communicated might have been that the owner of the building did not care enough about the mural to preserve it. That communication would have been insulting to the artists, but it would have been true. To those who did not know about the mural, the message communicated would have been no message at all. In either case, there would have been no false message communicated. We therefore conclude that the artists’ VARA claim did not constitute a claim for libel under the policy.
2. Disparagement
Under California law, “disparagement” covers claims for trade libel. See, e.g., Microtec Research v. Nationwide Mut. Ins. Co.,
Under California law, the tort of invasion of privacy “provides a remedy for situations in which there is neither injury to a property right nor breach of contract, and where a civil action for defamation would fail because of the defense of truth.” 5 Witkin, Summary of California Law § 577 (1988). False light invasion of privacy “is the wrong inflicted by publicity which puts the plaintiff ... in a false but not necessarily defamatory position in the public eye.” Id. § 584 (citation omitted). California courts have largely collapsed “false light” causes of action into libel. See, e.g., M.G. v. Time Warner, Inc.,
Nevertheless, a false light claim still requires the invasion of some type of privacy interest. “The right of privacy concerns one’s own peace of mind, while the right of freedom from defamation concerns primarily one’s reputation.” 5 Witkin § 579 (quoting Fairfield v. Am. Photocopy Equip. Co.,
B. Claim Under Cal. Bus. & Prof.Code § 17200
The artists’ complaint that the Corts violated § 17200 did not give rise to a duty to defend under the policy. California provides a private cause of action for any “unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof.Code § 17200. This “sweeping language” includes “anything that can properly be called a business practice and that at the same time is forbidden by law.” Bank of the West v. Superior Court,
Section 17200, however, entitles an individual litigant only to injunctive and resti-tutionary relief; it does not provide for damages. See Bank of the West,
V. Advertising Injury
The Corts also claim a duty to defend based on the “advertising injury”
The policy does not define “advertising,” but “[t]he generally accepted definition of ‘advertise’ as used in comprehensive general liability policies is the act of calling public attention to one’s product through widespread promotional activities.” El-Com Hardware,
The first argument fails for two reasons. First, it is irrelevant. The Corts argue that the mural drew attention to the building, but the question is not what the mural accomplished. Rather, the question is what covering the mural accomplished. Obviously, covering the mural terminated any advertising that the mural might previously have provided. Second, to the extent that the Corts’ argument could rest on the assertion that the use of the mural itself constituted advertising injury, the argument is contradicted by California case law. In Ziman v. Fireman’s Fund Ins. Co.,
The second argument, that covering the mural and displaying the blank wall constituted an advertisement for the available wall space on the building, also fails. That the Corts had plans to lease the wall for advertising purposes does not by itself demonstrate that covering the mural was advertising. If the Corts covered the mural to advertise the wall as being available to advertisers, then they might be able to argue that this constituted advertising. But the timing of events belies this argument. The Corts covered the mural in July 1998. By that time, however, the tenant occupying the majority of the space in the building, University Games, had already signed a lease that included a provi
Conclusion
Because the artists’ claims cannot be construed as alleging any cause of action within the personal injury or advertising injury coverage of the St. Paul insurance policy, the judgment of the district court is
AFFIRMED.
Notes
. We limit our discussion to VARA. The artists’ claim for violation of VARA is essentially the same as their claim for violation of CAPA. Moreover, it appears that CAPA may have been preempted by VARA. See 17 U.S.C. § 301(f)(1); Lubner v. City of Los Angeles,