ers, distributors, broadcasters and colorizers on the one hand, and, on the other, the creative contributors to the film. A broadly based, voluntary agreement setting down commercially stabilizing rules of behavior should not be excluded simply because we can't imagine the text of one right now. The directors and screenwriters are looking for limitations on what can be done to their work in the context of commercial exploitation. The producers, distributors and other users want both commercial flexibility and predictable, stable rules. This is a situation where a voluntary code, particularly for colorization, may be achievable. You might want to explore this with other witnesses. For our part, Mr. Chairman, we are prepared to help. That concludes my testimony, and I would be pleased to answer any questions. Mr. KASTENMEIER. Thank you, Mr. Oman, for that presentation. And without objection, of course, your 41-page statement will be accepted and made a part of the record. [The statement of Mr. Oman follows:] STATEMENT OF RALPH OMAN on H.R. 3221 and H.R. 2400 H.R. 3221, the Visual Artists Rights Act of 1987, would grant visual artists new federal rights under the Copyright Act which are known in civil law countries as "moral rights" and the resale royalty right, or "droit de suite." For visual artworks, it would establish for the first time a federal right in the nature of moral rights. H.R. 3221 would in addition create federal rights for works of fine art, which are defined as pictorial, graphic, or sculptural works of "recognized stature." Traditionally, the United States copyright law has not given additional rights to a work based on its quality. The proposed distinction based on aesthetics has preservation and national cultural interests as the raison d'etre; it may be in the national interest to treat works of greater aesthetic merit with greater respect. In copyright law, however, the marketplace has traditionally controlled the benefits accorded works of differing quality. H.R. 3221 assigns the Copyright Office two registration functions. I would ask that the legislative history make clear I have the authority to charge a reasonable fee for the registration services. Congress might wish to sever the moral rights from resale royalty provisions of H.R. 3221. The Office has no principled objection to the concept of resale royalty rights, but many issues need to be considered before legislating on this subject. H.R. 2400 would in essence create a federal moral right on behalf of the principal director and principal screenwriter of a motion picture. Material alterations could be made in a motion picture only with the written consent of these artistic authors. The Copyright Office cannot at this time support legislation that would create new moral rights in original works of authorship, pending completion of the study on colorization requested by the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice. When the Office decided that certain colorized films may satisfy the originality standards of the Copyright Act, the Office also proposed to require deposit of the black and white film. If this proposal is adopted, those black and white films will be made part of the collections of the Library of Congress and preserved for posterity. Statement of Ralph Oman Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice Mr. Chairman and members of the Subcommittee I am Ralph Oman, Register of Copyrights in the Library of Congress. Thank you for the opportunity to appear and present the views of the Copyright Office regarding H.R. 3221, the Visual Artists Rights Act of 1987, introduced by Representative Markey, and H.R. 2400, the Film Integrity Act of 1987, introduced by Representative Gephardt. H.R. 3221 would grant visual artists new federal rights under the Copyright Act: 1) a right to claim or disclaim authorship, and prevent distortion, mutilation, and other alterations of their works, and 2) a right to receive royalties when their works are resold. The first, known in civil law countries as the moral right, or "droit moral," has been granted to authors in various forms in several foreign countries, and to a limited extent under various legal theories in the United States. The second, known as resale royalty rights, or "droit de suite," is not recognized in federal law, but is recognized by the state of California and by several foreign countries. On behalf of the men and women who paint, sculpt and draw, this legislative proposal symbolizes a new direction for federal copyright law. - 2 H.R. 2400 would in essence create a federal moral right on behalf of the principal director and principal screenwriter of a motion picture. Material alterations could be made in a motion picture only with the written consent of these artistic authors. - These bills come at a time when United States adherence to the Berne Convention for the Protection of Literary and Artistic Works appears imminent. The House has already passed an implementation bill, H.R. 4262, by a vote of 420-0, and a Senate bill, S. 1301, will soon be ready for a vote. Both the Senate and the House Berne implementation bills take the minimalist approach to moral rights i.e. that the United States need not adopt specific moral rights legislation to adhere to Berne. The Copyright Office supports the minimalist approach. Moreover, this Subcommittee has asked the Copyright Office to conduct a study relating to colorization, time compression, and panning and scanning of films and it would be premature to comment fully on these issues now. I. VISUAL ARTISTS RIGHTS BILL A. Background of Visual Artists Rights Legislation Visual artworks present special challenges in copyright law because of the nature of their creation and dissemination. In many cases, they are neither mass produced nor mass distributed; a work may exist only in a single copy. After the sale of that unique work, the first sale doctrine of the copyright law prevents artists from sharing directly in the increased resale value of their works. In many cases, the lack of opportunity for visual artists to share directly in the future value of their works sets them apart from authors of musical works, dramas, and choreography. 3 Increased legal protection for visual artists has its own external impetus. The steadily increasing value of art in the marketplace has been exemplified recently by the history-making sales prices of fine art. H.R. 3221 has been carefully crafted with an eye to the sensitivities of the marketplace and the interests of the artistic community. It responds to our desire to preserve the artistic achievements of American artists, as well as the need of creators to have a continuing relationship with their creations. There is also pending before the Senate a companion bill, S. 1619, introduced by Senator Kennedy last year. Hearings were held before the Senate Subcommittee on Patents, Copyrights and Trademarks in December at which I and a number of industry representatives testified. B. Basic Principles of H.R. 3221 1. The Concept of Ownership. H.R. 3221 is the result of a number of refinements. For visual artworks, it would make a sharp distinction between the artist's copyright and the transferee owner's copyright, establishing for the first time an artist's federal right of personality. In contrast to economic rights, these personal rights do not transfer with an assignment or sale of copyright ownership. H.R. 3221 would give visual artists two new kinds of personal rights: moral rights and resale royalty rights. They are expected to remain with the artist for his or her lifetime, and, upon the author's death, to pass to the estate of the artist. Although the artist may assign royalty collection to an agent, the bill specifies that the artist may not waive his or her resale royalties. It does not expressly state whether the author may assign or waive his or her moral rights, although nonassignability or nonwaivability |