sculptor would be concerned about changing the environment in which a sculpture appeared. It perhaps wouldn't meet the test of the preceding witness, of Mr. Koegel, I guess it was-of distorting the work itself, the physical work itself, which was how be defined distortion, rather than the external presentation of the work, the framing or the setting, et cetera. But, obviously, not everyone sees that question quite alike. Mr. LEHMAN. Although I believe that the museum community, working very closely with the artist community, generally is exceptionally sensitive to these issues. Our reading of the bill certainly is not as cut and dried as the former witness is reading in terms of the word "distortion" or even the word "modification." There are may instances in which we are concerned about the potential for what we would not like to see as a kind of frivolous confrontation over the exhibition of works of art of living artists. I would also hate to see museums cut back on showing those works of artists where the installation becomes such an important issue and it is becoming more of an important issue as artists become more aware of those concerns as well, and I would certainly be very disappointed to see the museum community draw back from difficult presentations because they are afraid of having litigation follow or even the threat of a litigation. So I think ultimately, the artist community could, in fact, find itself at a disadvantage as museums are major presenters of their works throughout this country and perhaps the word "distortion,' all of these words that we consider, as I said, supercharged, could be worked out so that other language could be substituted that would still make the point that is being sought here obvious, but not as ambiguous. Mr. KASTENMEIER. Let me ask you, to change the subject just a bit, do you have any problem as a museum director with adding the words "fabrication" and "carved," in addition to casting in terms of prints and sculpture? Mr. LEHMAN. I have no problem with that at all. I believe Mr. Blix is absolutely correct. The way in which sculpture is made today is very different than the way in which it was made 100 years ago and sculptors are investigating and exploring many dif ferent techniques and working with fabricators and I would not like to see those techniques excluded from this bill, which are absolutely as appropriate as the casting technique. Mr. KASTENMEIER. Mr. Lehman, you have heard both Mr. Snelson and Mr. Blix give anecdotal reports of what has happened to them or might have happened to them in terms of their works in the past. From the other side of it, from the side of the public entity or the commissioning entity, are there not suggested some real problems if somebody acquires a massive sculptural work? Many people, I suppose, would think of that in terms of architecture. That is to say, in 20 years, the whole place may be just eradicated, moved out, including the sculpture. Apparently, henceforth, they are going to have to take special pains in how they commission sculpture. They would have to be clear that they would have a right to—with the building-to maybe remove or raze the entire area, that a given sculpture could not necessarily be preserved in perpetuity in that setting, I would imagine. Would you not? Mr. LEHMAN. First, let me just comment about your question of a little while earlier concerning architecture versus sculpture. I think the issue there is intention and, obviously, with Mr. Snelson's work and Mr. Blix's work, the intention is not to create a work of architecture, but a work of sculpture and I think that is an easy distinction to make and an acceptable one at the very outset. I believe that museums, other kinds of public or corporate collectors and individual collectors should take into account the longterm ramifications of the either purchase or commissioning of a work of art. There is no question that in decades-in future decades, we all may find ourselves with difficult situations. But that is no reason to allow for the destruction of a work of art. There may be issues concerning the repositioning of a work which may not, in fact-and that, again, raises the question of distortion. If Mr. Blix's sculpture was positioned in an interior setting, for instance, which allowed for the sculpture to be seen in the round and to be used as it was intended, but it still was intended as an outdoor piece versus an indoor piece, there could be a very heated discussion as to whether or not that distorted the word-I am sorry to use that as an example, but it is just one that comes to mind. So I would like to see that language explored a little bit more. I don't think this bill is going to solve every issue and I would hate to see the courts overburdened with increased litigation, but the important thing here is I think this makes us aware of these issues. It recognizes the validity of artist's work to exist for the future and I think that is what this bill is all about. There may be some exceptions; there may be some problems, but most importantly, this is a great victory for a very essential part of our cultural history, and for that, I really commend us moving forward. Mr. KASTENMEIER. It is certainly true, for example-so many years ago, in terms of Mr. Snelson's work, Tower of Light, that what the consortium of utility companies had in mind and what he had in mind as a creative artist and sculptor in this connection were entirely different. He had no notion that they were going to dismantle and destroy his work and they presumably never had any intention of keeping it in the long term. So that should have been, I suppose, determined at the outset, and with this bill, it will make, I think, people aware of their responsibilities and rights with respect to sculpture and other art. There is one question I would like to ask several of you. That is about public display versus private home display of works of art, of visual art, whether sculpture or paintings. Do you think the bill ought to make that distinction? Mr. SNELSON. I was considering that when the discussion was going on earlier. Certainly, there is no way to prevent anyone in the privacy of the home to do other than what they will with it unless you get a search warrant or something. The problem comes where permanent changes are made, where somebody decides that it would really be better if it were sold as halves rather than whole. Then later, the artist has a show with works borrowed from everywhere-and this often happens-and suddenly one discovers this piece in two parts. When it comes out into public view it becomes a profound problem. How that is covered in this law, I don't know enough about law to know, but clearly it isn't only a question of what happens to public works because even privately owned art one day becomes public. Mr. KASTENMEIER. One last question, this bill, as it presently is composed, permits waivers. Would it be preferable if waivers were prohibited or permitted? You probably know what the arguments are. Some people, particularly in Europe, make the argument that if you permit an artist to waive his or her rights, you potentially may have, in a sense, committed an injustice because you permit them to compromise their own creations, but in this country, practically speaking, it is argued that you have to permit the waiver in order for there to be accommodations between the artist and the transferee of the art. What is your view, Mr. Lehman? Mr. LEHMAN. I would be very interested in seeing the ultimate information produced by the study from the Copyright's Office and the museum community has not taken a stand on the waiver issue, per se. I do envision, however, instances where the waiver possibility again could work to the advantage of the artist community. There are instances where works-installation pieces, for instance, or works of art that are intended to be temporary, that have ramifications that go beyond the very cut and dry definition that most of the community thinks of when they think of a work of art. The artists are exploring so many different alternatives today and we certainly want to encourage that. There certainly may be instances where a waiver would work to the advantage of the continued exploration and exhibition of works. But as I said, we have no position on that and I would be interested to see the study that will be produced. Mr. KASTENMEIER. Mr. Snelson. Mr. SNELSON. I think that established artists won't have much trouble with it. I think they would be inclined to say, if they saw danger down the road, "Look, I can't sign that waiver because I don't know who is going to buy your building next. Your intentions may be fine." An artist in the position that I was in in 1964, my first commission, nobody knew my name nor my work, I would certainly have been inclined to say, "Look, I'll take a chance with you. You say you're not going to do anything naughty with it, I'll have to believe you." So the artist, under these circumstances, will be vulnerable to unscrupulous people or from unforeseen circumstances. So there is no protection, once the artist signs a waiver. Mr. KASTENMEIER. Mr. Blix, are you satisfied that with the study, we can, under this bill, permit waiver, but see what the effects may be? Mr. BLIX. I think the study will reveal a lot, though I think I can see advantages to doing it both ways. There are potential financial advantages to artists in signing a waiver and I know what can happen to hungry artists who are beginning their career. They will sign anything to get that first piece out there, that first show, that first acceptance, and 5 to 10 years down the road, realize what they have done. If they have gained a reputation, they may wish to undo the waiver, but are now stuck. I also know that under certain circumstances, there is a slight adversarial position between galleries and artists. In some cases the galleries desire rights that are almost equivalent to or supersede those of artists. It is a sticky point and the study will probably do a lot to resolve the situation. Mr. KASTENMEIER. Thank you. The committee is grateful to the three of you for your appearance and your testimony this morning. I know, in the case of Mr. Blix, he has come a very long way to be with us and we are delighted to have him out East here. We thank you, too, Mr. Lehman and Mr. Snelson, for your appearance. This concludes the hearing this morning on the Visual Artists Rights Act and the committee will stand adjourned. [Whereupon, at 12:45 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.] APPENDIXES APPENDIX 1.-ALLISON SANTOS, PRESIDENT, S.E.W., INC., PORTLAND, OR, LETTER TO HON. LES AUCOIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON (NOVEMBER 29, 1989), WITH ATTACHMENT I understand a Hearing was held on October 18, 1989, before the House Judiciary Subcommittee on Courts, Intellectual Property and the Administration of Justice, concerning H.R. 2690, Representative Kastenmeier's version of the Visual Artist's Rights Act. I feel very strongly about this issue and have supported it for two years. Earlier this year I did some broadcasting over Oregon Public Broadcasting, in support of the issue. I feel the issue will secure moral and paternity rights to artists and their work and that those rights are necessary to provide a safe and lively climate for the arts here in our country. In the 100th Congress, the Visual Artists Rights Act called for a 7% resale royalty on works with a value of $1,000.00, or more. This year, the bill in Section (9,B) calls for a joint study between the Register of Copyrights and the National Endowment that will be executed if and only if the bill passes. The study will take up to 18 months to complete and once again the same groups which put down the legislation last year will have another opportunity to put in another, "two cents." In the hearings which were held in the 100th Congress, galleries and museums both felt the resale royalty would price them out of the market. My experience in the gallery market as an artist as well as my experience as an owner of a gallery tells me the issue (137) |