In 1984, New York passed its New York Artists' Authorship Rights Act. 8/ The statute prohibits the display of an "altered, defaced, mutilated, or modified form" of a work of fine art which damages the artist's reputation. There is no explicit prohibition against destroying a work, although destruction in the context of damaging an artist's reputation might fall within the Act. The artist additionally has a right of attribution, and the right to disclaim authorship for good cause. Conservation does not constitute alteration, defacement, mutilation, or modification unless the conservation is done negligently. 3. Massachusetts Passed in 1984, the Massachusetts statute prohibits "the intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art." 9/ The artist retains a right of attribution, and the right to disclaim authorship "for just and valid reason." If a work of fine art cannot be removed from a building without substantial alteration, the prohibitions of the Act are suspended unless a written obligation signed by the owner of the building has been recorded. If the work is capable of being removed without mutilation, then the prohibitions of the Act apply unless the owner notifies the artist and provides the artist with an opportunity for removal. 8. N. Y. Arts & Cultural Affairs Law $14.03 (McKinneys 1987). 9. Mass. Gen. Law Chap. 231 $86S (West 1987). H. European Concepts of Droit de Suite Droit de suite, within the framework of continental European jurisprudence, is generally justified on the ground that the author/creator has the fundamental right to participate and share in every commercial exploitation of his intellectual creations. Writers and composers, through the system of royalty payments, participate continuously during the term of copyright protection in the commercial exploitation of their creative works. Artists, on the other hand, do not generally enjoy the same prerogatives because of practical and legal constraints. An original work of art is an intellectual creation embodied in a tangible object. Since the value of such a work is measured in terms of its uniqueness, it is not susceptible to the ordinary modes of copyright exploitation (reproduction, performance, etc.). Its exploitation, nonetheless, occurs with every sale (resale) for a monetary consideration. Droit de suite the right to follow proceeds generated - is a system established in relatively few countries to allow the artist to share in the continued exploitation of his or her work of art. The concept of droit de suite 10/ has developed somewhat 10. The term droit de suite comes from French real property law. Under article 2279 of the Civil Code, a taker of personalty cuts off all rights of the true owner, for "in the matter of personalty, possession equals title." The only exception is in the instance where the holder is a thief or finder and the owner vindicates his rights in three years. Rights to realty are, however, more sacred, and an owner or a creditor may pursue the realty in the hands of a taker, even a bona fide one. Creditors may not do the same to personalty, for the chattel mortgage, as such, does not exist in French law. This right to pursue or follow the property (realty) is called, literally enough, the "follow-up right" (droit de suite). Rita E. Hauser, "The French Droit de Suite: The Problem of Protection for the Underprivileged Artist Under the Copyright Law," 11 ASCAP Copyright Law Symposium, 1, 5, n. 14 (1962). ambiguously and equivocally on the European continent. It is generally inspired both by sentiments of equity and philanthropy. Several theories have evolved within the scope of European jurisprudence, attempting to explain or justify the existence and juridical nature of the droit de suite. It has been described as a levy or tax, based on philanthropic considerations, to promote social welfare of artists and their heirs. Others have explained it as based on the inherent "latent value" of artworks. According to this theory the artist is deemed to have, at the moment of creation of an original work of art because of his or her labor, the right to share subsequently in an overt increase in the sale price. A failure to share in the added value would give rise to an unjust enrichment on behalf of a noncreative purchaser. Some have justified the resale royalty on a principle of contract law that permits and justifies the modification of a sales contract by a court when hardship results from circumstances unforeseen at the time of the making of the first sales contract. The foregoing theories were advanced primarily because the first European laws of droit de suite were outside the framework of the copyright law. In the omnibus revision of the French copyright law in 1957, droit de suite became an integral part of the French Copyright Act. This now is also true of Belgium, West Germany, Czechoslovakia, Hungary and Yugoslavia. Droit de suite is generally applicable to works of fine art. In Europe it does not generally apply to reproductions, architectural works and works of applied art. A limited consensus has evolved on the propriety of a special reward to the artist/creator. Disagreements, however, continue as to the best methods for granting this reward. - 17 · Ever since 1920, France has employed a simple approach whereby the authors of "graphic and plastic works" (whose price is more than 10,000 francs) receive a royalty (currently 3%) on the gross sale price of the works sold "either by auction or by merchant." For political and practical enforcement reasons, the law has not in fact been applied to sales by merchants. A similar approach is used in the German Copyright Act of 1965. The price received on a resale of an original work of art for 100 DM or more, with an "art dealer or an auctioneer" as purchaser, vendor or agent, is subject to a five percent royalty. This right is inalienable and unwaivable. The law, however, does not apply to architectural works and works of applied art. The right expires after ten years. The Italian regime of droit de suite is based on the "value plus" principle which, without discrimination between public and private sales, grants the artist the right to participate in the profits of the owner/vendor. The "capital gain" royalty, which was first recognized in Italy by the 1941 Copyright Act, is substantially in effect to the present day. The law however has been applied retroactively to works of art sold by an artist before its effective date. The Italian law basically provides that the creators of works of art in the form of paintings, sculpture, drawings and prints shall be entitled to (1) a percentage of the amount by which the price of the first public sale of original copies of such works exceeds the price of first alienation or transfer of the physical object, and (2) a percentage of the capital gain that the original copies of their works ultimately acquire in successive public sales. The law also provides that an increase in value shall be presumed, and prescribes an elaborate system of percentages applicable to public and private sales. The percentages established for the public sales are applicable only if the selling price is in excess of 1000 lire (4000 lire for private sales) for drawings and prints; 5000 lire (30,000 lire for private sales) for paintings; and 10,000 (40,000 lire for private sales) for sculpture. In practice, this legislative design has proven to be difficult to apply and enforcement has been lax. In France and Germany, the droit de suite regimes have worked with fair success, but the general consensus seems to be that there are some serious problems in enforcing droit de suite. I. General Comments on H.R. 3221 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. But the copyright law has traditionally relied on the marketplace to control the rewards earned by artists. We must be very careful in reordering relationships in the art world especially between the artists and the gallery owners. We should not look on works of art as we would a box of cornflakes in the supermarket. A gallery owner may have a very personal relationship with an artist, and we should not burst in with major reforms without full exploration of the ramifications. H.R. 3221 attempts to tred lightly in this - delicate area, but the Copyright Office would like to hear from other experts before making a final judgment. |