The San Francisco Museum of Modern Art (SFMOMA) is now facing a countersuit filed Thursday by City College, a public community college, as the two institutions battle over who should pay for the return to the school of a 30-ton Diego Rivera mural, known as Pan American Unity, that was loaned to the museum.

The saga began in September 2019, when the museum and the college agreed to the loan of the mural, officially named Unión de la Expresión Artística del Norte y Sur de este Continente (1940), painted by the famed Mexican muralist on commission from what was then San Francisco Junior College.

The mural was packed in a truck and moved across the city in June 2021 to star in a retrospective of the artist’s work at SFMOMA. Under the agreement, the museum was required to dedicate a budget of $3,975,000 to complete the project, including its removal and return to the college, court documents stated.

However, the college claims that the agreement required SFMOMA to dedicate $1 million of that budget to the return of Pan American Unity by September 1 of this year (for now, the public can still view the mural at the museum). Any revisions to that deadline would have to be agreed upon by both the museum and the college, it claimed, and any modification or cancellation of the agreement out of the museum’s inability to complete the project would require signatures from both parties.

“SFMOMA will be logistically and financially responsible for the expenses incurred and activities undertaken,” the 2019 agreement read, according to court documents.

The two institutions reportedly met to discuss the completion of the project in April when the museum allegedly informed the college that it had used all of the budget—including the money allotted for its return. But the college asserts that it did not agree to amend or cancel the agreement at the time.

“SFMOMA waited until after it had spent all of the project budget (including the return budget) to inform College that it had no funds to meet its obligations pursuant to the agreement,” the school claimed.

The countersuit was filed in the San Francisco Superior Court for alleged breach of contract, negligence, and declaratory relief. In its legal arguments, the college said SFMOMA “negligently and recklessly” mishandled its finances and violated the return deadline by not ensuring there was enough money to pay for the mural’s return.

SFMOMA, in its lawsuit filed last month, claimed it is the college that “is refusing to fulfill its contractual obligation,” not the museum. It argues that the $3,975,000 figure represented a budget cap and that the college “would bear responsibility for all expenses in excess of that amount.”

“SFMOMA has already paid more than it agreed—over $4 million to date—and therefore has no further financial obligations under the agreement,” the museum said, also alleging that the college failed to engage in time-sensitive planning for the deinstallation of the mural.

“The museum therefore reluctantly seeks a judicial order confirming the parties’ rights and obligations under the clear and plain language of the agreement, so the parties can move past this dispute and resume their long and positive collaboration in this important and historic joint project.”

The mural has been the subject of discussion regarding its permanent home ever since it was painted.

When Pan American Unity was commissioned, the college intended to install it in a library it planned to build. Ahead of its completion, the San Francisco Art Commission and Board of Education received complaints because it contained caricatures of Adolf Hitler and Benito Mussolini.

After its showing in the aftermath of the Golden Gate International Exposition, the 1939–40 World’s Fair, Pan American Unity was crated and temporarily stored on Treasure Island in 1941. The de Young Museum declined to take it that year and it was moved to storage at the college in 1942 to await the completion of the library, which never materialized. In 1961, the mural was housed at a new theater on campus.

The mural has since been kept by the college, despite attempts by other museums in the city to acquire it, and has never quite received the type of space it was created to fill. However, the mural is expected to be part of a new theater on campus to be completed in 2026.

“The college has always had a kind of love-hate relationship with its unlikely treasure,” journalist Ron Russell wrote in SFWeekly in 2003. “Despite years of promotional neglect, and the college’s inability even to insure an acclaimed artwork that experts say would be valued in the many millions of dollars were it to go on the market, the school has steadfastly refused to part with it.”

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