I said, "Well, I guess the first problem is for me to help you take them apart." He said, "Oh, no, there's no problem with that. We just cut a bunch of wires." He said, "I wanted to know-I'm dealer. I just wanted to know what alloy they were, if you remembered what aluminum alloy they were."

scrap

I was dumbstruck. I couldn't believe that this had happened, but suddenly, it was fait accompli and the pieces were just-they had evaporated.

I didn't think at the time that I had any rights-I didn't weigh the matter. I mean, as far as I was concerned, the attitude of many people who object to this bill possibly, as private property, was my view of it. They bought the pieces and I don't own them anymore and this is just a personal disappointment.

In the consciousness-raising over the years about these issues, which makes me feel very strongly about this bill now, certainly at least I should have been given the right-of-first-refusal about buying them as scrap metal. But, of course, I think that the attitude of the corporations or the people who managed this pavilion was that, well, it is just part of the architectural thing. We just knock that down. We are knocking down the rest of the pavilion. I suppose somebody might declare, well, there is some ambiguity about that, but this is a situation which would have turned out differently if this artists rights bill were enacted. There are many such situations in the art world today.

I do photography also, panoramic photography. A corporation bought one of my panoramas of New York City-it is a big 10-foot long picture and air-brushed out the logo of the Bell Telephone Co., on a building way, way, in the background because, for some reason it offended them. There is not much an artist can do about such defacement. You hear about it, you shrug your shoulders and say, well, there goes that. So when that piece appears one day at Sotheby's or wherever, at auction, as probably it will because money was paid for it, somebody will say, gee, that's strange, it is a little different from this one, isn't it? The artist air-brushed out Bell Telephone.

At any rate these are personal tales and they bear on what we are talking about.

I do have a couple of examples that we have incorporated here. [Slide.]

Mr. SNELSON. This is another view of that one piece.

[Slide.]

Mr. SNELSON. This is the piece that the Hirshhorn, by the way, down the road. You can see this from Independence Avenue, if you peek over the wall. It is 60 feet high.

That is the other thing about this. I wanted to say that the reason the column piece at the World's Fair was important to me, I have done about six different columns that exist in different places in the world. This one at the Hirshhorn is 60 feet. There is one in Holland which is 90 feet and there is one in New Orleans and there is one going up in Shiga in Japan. They are all a sequence of different ideas about towers and so the one-one out of six now-is gone completely because of that destruction at the beginning. [Slide.]

Mr. SNELSON. This is-I was trying to offer you another example here. This is the work of Ely Jacques Kahn and it was on the Bonwit-Teller Building bought recently by Trump. Even though these art deco pieces were valued by the Metropolitan Museum, which agreed to take them from this building, they were valued at $250,000, Mr. Trump decided it was inconvenient to have that done, whether it was taking more time, I really don't know, but at any rate, he jack-hammered them away and declared, when people protested, they were without artistic merit.

This is another hazard that one has when one doesn't have protection of such a law because anybody can say, "Well, this doesn't have artistic merit" at any point do whatever they wish with it. [Slide.]

Mr. SNELSON. This is a portrait by Robert Henri and it and literally hundreds of others were destroyed by his sister-in-law after his death. His sister-in-law decided that a number of these picturesmany, many of them should be destroyed to limit the amount of work because that would raise the value of the remaining pictures, so she took it upon herself to decide which of Mr. Henri's pictures should be destroyed.

[Slide.]

Mr. SNELSON. This is the famous geometrical piece by Noguchi. Ownership was transferred to the Bank of Tokyo in Manhattan when the bank was bought. They decided to redo the lobby, so, in order to satisfy some people's objections to this piece, they cut it apart and removed it piece by piece through the front window without telling Isamu about it. Then they tried to donate it in pieces to a museum. He objected, saying it was impossible to reconstruct the sculpture and they had no right to remove it.

I think that that is really the substance of what I have to say and I thank you very much for your time.

Mr. KASTENMEIER. We thank you, Mr. Snelson. That is interesting testimony.

[The prepared statement of Mr. Snelson follows:]

STATEMENT OF KENNETH SNELSON

NEW YORK, NEW YORK

BEFORE

HOUSE SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE

ADMINISTRATION OF JUSTICE

HEARING ON

H.R. 2690, THE VISUAL ARTISTS RIGHTS ACT OF 1989

OCTOBER 18, 1989

Mr. Chairman,

I want to commend you for introducing the Visual Artists Rights Act of 1989, H.R. 2690, and I want to thank you for inviting me to testify in support of this important measure. My name is Kenneth Snelson and I am an artist living in the very middle of America's art center, Soho, Manhattan, New York. Mostly, what I would like to say is a true tale of my first important public commission twenty-five years ago.

In 1962-64 I was asked to build two grand scale aluminum and stainless steel sculptures for the 1964 New York World's Fair, for a pavilion known as the "Tower of Light" designed by the architects, Robinson, Capsis and Sterne. At the time it was not a small commission, $35,000. I planned for one of the works to be 60' high; the other, 17' X 12' X 35'. It was indeed the headiest moment of my life, for now I had a bona fide collector of my art, even though the collector's name was all of those forty participating power and light companies in the United States.

At last, after many years of work, to be given the necessary money to realize such grand sculptures, I could put every measure of energy I had into this exciting enterprise, eighteen months of work with total concentration and devotion. Considering all the planning and disruptive details, the sculptures represented my complete oeuvre for 1962 to 1964. I felt as if I were building a cathedral or launching an ocean liner. With the quality conscience of Tiffany, I made expensive, precise and beautiful castings for special parts so that everything would last forever. My sculptures of this structural type were not only a first for the world's fair, they were the world's first monumental tension sculptures. Most important for me was this great opportunity to have a major work seen to completion.

The two sculptures, when finished and installed, were gleaming open network pieces, tight-wire performances in three dimensional space, with their shining tubes and glistening cables, lit up, so I was told, by twelve million candle power of illumination. During the months of the exhibition, they were much admired by hundreds of thousands of visitors. As I saw things, the electric power and light companies across America had become my Medici.

Always the practical artist, I designed-in an ingenious technique for assembling and disassembling the two works so that they might be transported in a single truck for delivery to the pavilion and, later on, to their next home when the lights were finally switched off with the fair's September closing. Only two hours were required to put them together; less than twenty minutes to take them apart merely by loosening a few screws.

Through the bureaucratic tangle of forty local power companies, I was never able to learn where the sculptures were to be sited after the show was over. Wherever it was that my shining children were to end up, I was sure to be called upon to supervise the simple yet subtle procedure for putting them together again.

Finally, in September, the expected phone call came from the new owner. A man's voice, a single collector; better than dealing with a team of companies, I thought.

I thanked and congratulated my new collector.

I guess you'll need some help taking them apart."

"As a first step,

"No, we got 'em down ok, just had to clip a bunch of wires. I deal in scrap metals, you see and I hoped maybe you'd remember the type of aluminum alloy."

Stunned and numb holding the receiver, I answered, "Oh --the aluminum, certainly I remember. The tubes are 6061 T6, the cables are 302 stainless."

"Thanks" he said. "Sorry to bother you."

Well, somehow, from the earliest negotiations with the architects and those managing the pavilion, it simply never occurred to me that, after they had paid for these works of art, my sculptures were destined immediately to end up as scrap. Not smart from any point of view since, at auction today, together, they would bring twenty-five times their original price.

There is no sense of directed blame in this instance. It simply was a case that no one in the maze of administration thought that art was worth preserving; not even to the extent of inquiring whether the artist himself would be interested in buying it back as scrap.

I have no doubt that if there had been a Visual Artists Rights Act at the time, there would have been a discussion at the outset as to what was to become of the sculptures. And I do not believe as some critics will suggest, that this bill's passage would have a chilling effect on those who are considering commissioning or purchasing art. It will rather have the effect of consciousness raising and educating people about the real meaning of art in our country.

Though these events I speak of happened twenty-five years ago, the same thoughtless neglect could happen today. I regret greatly that my two sculptures no longer exist, even if they were dismantled and in storage.

By way of contrast, I made a sculpture for the "Expo-70" in Osaka. In this case, my sculpture and those of twelve other artists from different countries, were relocated and are preserved, evidence that even with so temporal an event as a world's fair it is still possible to distinguish between art done as part of an artist's life work and scrap metal.

I do hope you will support H.R. 2690, Artists Rights Act of 1989. It will be good for the collector who will enjoy greater pride in his or her collection, good for the art which stands a better chance of surviving, and good for the artist and his or her life's endeavor. I thank you very much for hearing my view on this bill.

Mr. KASTENMEIER. I guess that taking the Smithsonian as an example, one has to, I suppose, wonder at what point does something become architectural or, indeed, functional if, for example, it were used as a transmitter. At what point is it sculpture?

There may become a point at which one goes over the line. If one designs something as architecture or as a sculpture, what happens if it is used functionally in some way?

Mr. SNELSON. I suppose that there may be some confusion in people's minds in different instances and probably in my case, there is a particular question because my works do have geometrical and structural qualities that sometimes are characteristic of architecture. They might get mixed up in that way, but since the work has been recognized by museums and by collectors as art, rather than architecture-and I have never done architecture and don't have credentials as an architect, I think the question is entirely set aside.

There may be instances, such as in Ely Jacques Kahn's friezes. He did them as architectural embellishment, but historically, they are valuable they were very valuable as a part of art deco history. Individual judgments are going to have to be made, but I don't think that anything reads uncomfortably-in this act, that could not be decided by reasonable judges or reasonable juries.

Mr. KASTENMEIER. Mr. Snelson, do you or Mr. Blix share Mr. Lehman's concern about the word "distortion?" The recommendation is that it be eliminated because

Mr. BLIX. No. I think the wording, as it is, could stand. I, again, would appeal to the discretion of the courts in handling this issue. I can foresee an instance where somebody reframed a painting in a particular way, counter to the way the painter wanted it framed, being called distortion and this could impinge on his or her future reputation.

If we begin to pick these terms apart and try to assign them to each individual case, it is an endless job. I think it is more appropriate to allow the courts to make those distinctions.

Mr. KASTENMEIER. In other words, there was some discussion earlier that presentation of a work would not constitute distortion in and of itself, but you are saying it is possible-

Mr. BLIX. Very possible.

Mr. KASTENMEIER [continuing]. Presentation of a work could be, in your view, should be distortion. Is that correct?

Mr. BLIX. It could be. I think the history of these laws being passed in places like California have indicated that the courts can take care of strange situations, that it doesn't increase litigation. The point that I am making is that art is a very open-ended activity and any time you think you have every case nailed down, somebody is going to come up with something you never expected.

So I think your wording and the way you deal with the bill has got to allow for the creative flexibility of the artist and still offer him or her this very valuable coverage.

Mr. KASTENMEIER. I want to raise this because, you know, I think I can see where different people would come to different conclusions about what constitutes a presentation or distortion and it may be somewhat different, whether you are referring to a oil painting or a sculpture; that is to say, I could understand why a