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purpose of a trademark is to give notice

of who was the producer of the art. There is no such thing as an abstract trademark

apart from the work that the artist created; he can claim no trademark rights in the surroundings of the Plaza.

Judge Pollack in accordance with the federal administrators Diamond and Ink has decided that there is no such thing as a site-specific sculpture. In denying the existence of this conceptmy work is being distorted and changed into a

marketable product which a government agency is trying
to sell and thereby destroy. Every decision which I as the
artist made in relationship to my sculpture is ignored
and declared invalid in a sentence stating "that the

identifying mark of the art in any relocated site would remain
the same." If the three curved steel plates which in their
particular site establish my sculpture Tilted Arc are
moved to another site, the name of the new constellation
which might resemble the material substance of the original
will not be Tilted Arc. Since the identity of my piece
is dependent on its site, the identifying mark cannot be
carried over to another site. Neither can my name. To do so
would be a falsification. Who is going to put his signature
on three relocated steel plates? An administrator? A Judge?

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Can federal employees really feel iegally free to negate the artist's decisions and to falsify his work? Judge Pollack tells me that they can, that "the Government has the authority to alter the appearance of federal property." I am outraged that it can be stated by a federal judge, who bases his statements on the laws of this country that I have no right to protect my piece from destruction. Please help, to change this situation. I will appeal Judge Pollack's decision and fight my case in court for as long as necessary; but I hope that no other artist will be subjected to this injustice again.

enclosed is a draft of the testimony I am willing to give in

front of the Judiciary Committee. Please let me know if

my statement needs to be augmented, edited or changed in

any way.

Sincerely

Ruchard Serra

Richard Serra

Immediate Past President

The American Intellectual Property Law Association ROBERT C. KLINE (AIPLA) is a national society of 5,400 lawyers involved in the practice of patent, trademark, copyright and related

Board of Directors laws affecting intellectual property.

The Above Persons and

ALBERT P. HALLUIN 1. FRED KOENIGSBERG

HERBERT H. MINTZ HAROLD C. WEGNER

HENRY L. BRINKS

THOMAS I. O'BRIEN JOHN O. TRESANSKY

H. Ross WORKMAN ROBERT A. ARMITAGE ROBERT L. BAECHTOLD WILLIAM H. ELLIOTT. JR ALBERT ROBIN

Councilman to NCPLA
LEONARD B. MACKEY

Executive Director MICHAEL W. BLOMMER

The AIPLA has been carefully following developments over the past several years relating to possible United States adherence to the Berne convention for the Protection of Liberary and Artistic Works. On October 21, 1987 the Board of Directors unanimously adopted the following Resolution:

RESOLVED, that the American Intellectual Property
Law Association supports in principle United
States adherence to the Berne Convention for the
Protection of Literary and Artistic Wroks (Paris
Act, 1971).

The

Berne Convention for the Protection of Literary and Artistic Works ("Berne") was created in 1886, and is the oldest international copyright convention. Today, the United States, the Soviet Union, and China are the only major countries that are not parties to Berne.

A change in two conditions now makes it both possible and imperative that the United States join Berne. First, the enactment of the 1976 Copyright Act went far towards bringing this country's law into conformance with the minimum standards for protection set by Berne. Second, the

Formerly AMERICAN PATENT LAW ASSOCIATION (APLA)

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increasingly important role of American copyrighted works in the international marketplace makes full United States participation in the major international copyright convention essential for the continued protection American works as the highest possible level.

of

Adherence to Berne will put the United States in an improved negotiating position to influence foreign governments to take steps necessary to eliminate piracy of United States works. Equally importantly, it will allow the United States to assume its rightful leadership role in shaping the nature and extent of copyright rights internationally as we face the difficult challenges posed by new technologies.

We believe the benefits to be gained are too many and the accommodations to be made too few for the United States not to adhere to what is without question the paramount international copyright convention.

As you well know, three bills are now pending in Congress to facilitate United States adherence to Berne. They are: 1) H.R. 1623, introduced by you; 2) H.R. 2692, introduced by Mr. Moorhead; and 3) S. 1301, introduced by Senator Leahy. While these bills differ in certain details, their basic approach is to make the minimal changes in our law which will allow our adherence to Berne. That is clearly the best approach.

Adherence to Berne has raised a number of issues. Allow us to briefly comment on five of importance: (1) whether Berne is a self-executing treaty; (2) notice requirements; (3) the jukebox compulsory license; (4) moral rights; and (5) renewal and retroactivity.

Self-Execution. The issue of whether Berne is a selfexecuting treaty is critical, because the provisions of a self-executing treaty automatically become law upon accession.

We believe that Berne is not self-executing. This belief is based primarily on (1) the text of Article 6bis of the Convention itself, which contains absolutely no indication that Berne is intended to be self-executing, and which refers instead to implementation of the necessary protection through domestic legislation; and (2) case law construing the Paris Convention for the Protection of Industrial Property; see Mannington Mills, Inc. V. Congoleum Corp., 593 F.2d 1287, 1298-1299 (3d Cir. 1979) (treaty contained language virtually identical to that in