from which the work can be visually perceived" and Section 4.05 makes clear that if the notice is omitted, copyright is invalidated unless the omission is excused under the terms of that section. Assuming that the term "copy" as used in Section 4.01 of the proposed law includes the original of a work of fine art (as it does under the present copyright law), the total impact of these provisions on works of fine art will be to eliminate a copyright protection from the vast majority of works created by American artists. I am sure that such a result was neither contemplated nor intended. However, in view of the traditional, deeply entrenched reliance by the art world on common law copyright protection, this unfortunate result will inevitably follow. I should point out that the impact is likely to be particularly severe on inexperienced new artists, who know only that they have pictures that they want to make and to have exhibited wherever they can, and do not have any idea about legal formalities for copyright notice required to protect their creations. All the young artist knows is that Rembrandt, Picasso and all of his other heroes never put on a painting, and he is not likely to have an attorney to advise him that the law was changed. In addition to the emotional reaction that many artists have against using a copyright notice for fear of "cheapening" their work by making it appear to be too commercial, a large number of contemporary artists do not so much as sign their work because they feel that signature disrupts the aesthetic unity of the composition. These artists view the copyright notice as a further desecration of their work. I know that it is very late in the history of copyright revision to pose yet another problem. However, I respectfully submit that the most recent versions of the copyright revision bill fail to consider the special situation of fine artists, and may work inadvertent hardship on a vital segment of our cultural life. The solution to the notice problem for works of art is not an easy one. However, I respectfully suggest that in the case of works of art, the requirement that copyright notice be placed on copies of works should specifically exclude original works of art, and that whenever a notice of copyright is required to obtain protection for a work of art, that requirement should be satisfied if on some reasonably accessable portion of a work (perhaps subject to standards set by the Copyright Office), the name of the copyright propretor appears together with the date of the work. This will conform substantially to current practice by artists. and would avoid wholesale destruction of the property rights of artists through inadvertence or lack of understanding of the new legal requirements. I will be happy to discuss this matter further with the Committee or its counsel either in person or on the telephone and to provide whatever additional information or assistance I can. Thank you for your attention to this problem. CARL L. ZANGER. FEBRUARY 12, 1973. Re: Copyright Law Revision Hon. JOHN L. MCCLELLAN, U.S. Senate, Committee on the Judiciary, Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: This will supplement my letter of January 26, 1973 in which I called attention to the injury which I thought might be done to people who make, exhibit or sell works of fine art under the Copyright Revision Bill introduced in the last session of Congress (S. 644). In my letter of January 26, I outlined what I thought were the pertinent provisions of S. 644 that would operate to deprive artists of the protection they now think they have under common law copyright. I neglected in that letter to point out that the definition of "publication" in Section 101 provides, in pertinent part, that publication is the distribution of copies of a work to the public, and that public display constitutes publication. I also neglected to point out that the definition of "copies" in Section 101 provides that the term "copies" includes the material object in which the work is first fixed. Under present law, the public display of a work of art does not constitute publication if the public understands that no copying of the work may take place. American Tobacco Company v. Werckmeister, 207 U.S. 284 (1907. The Copyright Law Revision Bill would reverse this decision. I respectfully submit that the Copyright Law Revision Bill provides an excellent opportunity to furnish statutory support for the practices and understandings which have evolved in the art community and that the definition of publication and the notice requirements for works of art contained in the proposed Revision Bill be modified to reflect these practices. Specifically, I suggest that the Bill provide: 1. That the public display of a work of art does not constitute publication; 2. That the copyright notice for works of art may consist only of the name of the artist and the year: and 3. That the Bill provide expressly that where notice is required for works of art, it may be placed on the front, back, permanent base, mounting, frame or any other accessible portion of the work, or on any identifying card or placard which accompanies the work and is used to identify the work in normal use. Respectfully, CARL L. ZANGER. |