seems implied by the language that the artist shall have the right during his or her lifetime even where someone else holds the copyright. If the moral rights can be assigned or waived, it is unclear under what circumstances a court would enforce either.

Tradition

2. Aesthetic Considerations. H.R. 3221 creates special federal rights for works of fine art, which are defined as pictorial, graphic, or sculptural works of "recognized stature." The bill allows "recognized stature" to be established by expert opinions from artists, historians, curators, and others knowledgeable in the field of fine art. ally, the copyright law has not given additional rights to a work based on its perceived quality. Under present copyright law, the author of a Pulitzer Prize winning work has no more substantive rights than the author of a child's doggerel. 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. Congress has so far been unwilling to let judges act as arbiters of aesthetic quality.

3. Scope of Application. Despite the limitations of two of the special rights to works of fine art, the bill gives limited moral rights to all pictorial, graphic, and sculptural ("PGS") works other than works made for hire. Congress should consider whether the bill should apply to the entire "PGS" category, as it now is interpreted in the copyright law, including works of applied art, toys, games, and the like, or whether even

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the limited moral rights should apply to the much smaller category of works of fine art such as paintings, drawings, and sculpture. Exclusion of works made for hire limits the number of "PGS" works eligible for moral rights protection.

H.R. 3221 would give a work of fine art four new federal rights, two of which apply also to all pictorial, graphic, and sculptural works, not just works of fine art. Three of the rights are an offshoot of the moral right, and the last is the droit de suite.

1. Right of Paternity. Under the Markey bill, works of fine art that are publicly displayed have both positive and negative paternity rights. An author of a work of fine art may require that his or her name be placed on any such work, or require that the name be removed from a work that has been distorted, mutilated or otherwise altered. This right to have the author's name removed does not exist for visual artworks that are not works of fine art.

The ordinary remedies of the copyright law apply: injunctive relief, actual and statutory damages or an award of the infringer's profits, and attorneys' fees.

any

2. Right of Integrity. The bill gives the author of publicly displayed visual artwork an integrity right, irrespective of the quality of the work. The author can assert copyright infringement if his or her work is substantially or significantly distorted, mutilated, or otherwise altered, provided that the changes are the result of intentional or grossly negligent conduct.

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3. Right Against Destruction.

In addition to the right against

distortion, mutilation, or other alteration, the bill confers upon authors of works of fine art a right to recover monetary damages for the destruction of a work, when such action is intentional or the result of gross negligence. This extraordinary right would be awarded exclusively to works of fine art in recognition of the national interest in preserving their unique contribution to our culture.

Under certain circumstances, the moral rights granted under the bill are unenforceable, as for example, when the owner of a building wishes to remove a work of art from the structure in which it is incorporated. Where the work cannot be removed from the building without distortion, mutilation, or other alteration, the author's moral rights continue only if they were 1) reserved in a written document signed by both the author and the owner of the building, and 2) recorded in the state's real property records before the work of fine art is installed. If these conditions are met, present and future owners of the building are bound. Otherwise, moral rights are considered waived and the building owner can proceed with the intended action.

Where a work of fine art can be removed from a building without substantial harm, the author's moral rights continue unless the building's owner notifies the author or diligently attempts to notify the author without success. The author has ninety days after receiving notice to remove the work or to pay for such removal, thereby taking title to it.

Where the author is dead, the owner of the building would have to notify the author's heir, legatee, or personal representative in writing of the opportunity to remove the artwork in appropriate cases. As a significant number of works installed in or on buildings may be considered works

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of fine art just by reason of their selection as decoration, this right will impose new obligations on building owners. Thus, there will be custodial obligations with respect to protecting the work from defacement as well as an obligation to maintain information about the author, in case notification is necessary.

4. Right to Resale Royalties. The author's right to royalties on resale of his or her works applies to all pictorial, graphic, and sculptural works that resell above a certain price and appreciation level. The resale royalty is payable only on artworks resold for a gross price of $1,000 or more and 150 percent or more of the seller's original purchase price. The seller pays 7 percent of the increase in value over his or her original cost. No aesthetic standard is imposed on the author's right to royalties when the work of art is sold.

In order to qualify for a resale royalty, the author must register in the Copyright Office as an author before the resale occurs. Additionally, when a work on which royalties are payable is sold, the seller must register the transaction in the Copyright Office. The seller's penalty for failure to register the transaction is equal to treble the royalties owed. The bill directs the Register of Copyrights to issue procedures for both new registration requirements.

The bill would also eliminate the notice of copyright requirement

in the case of pictorial, graphic, and sculptural works. Both the House and Senate Berne adherence bills eliminate the notice of copyright as a requirement for securing copyright with respect to all works. If Berne implementation legislation is ultimately passed, H.R. 3221's exemption from the notice requirement will become unnecessary.

The criminal penalties do not apply to the author's moral and resale royalty rights. The rights are supplementary to the economic rights of copyright, which the author may also hold. It is appropriate that only civil penalties apply to these additional personal rights.

Consistent also with personal rights, the rights created by the bill do not apply to works made for hire. Thus, neither employees nor employers of works made for hire may claim benefits under this bill.

F. Comments on the Registration Provisions

H.R. 3221 assigns the Copyright Office two

registration

functions. First, in order to be eligible for resale royalties an artist must register with the Copyright Office. Second, all transfers of artistic works subject to a resale royalty must be registered with the Copyright Office. The specifics of the registration procedures are to be determined by Copyright Office regulations, and no explicit fee is designated for providing these services.