much more attractive legislative package in terms of its likelihood of success.

The purpose of the bill is to fill a gap in copyright law by recognizing that artists who work in painting, drawing and sculpture are intellectual authors who deserve protection for their works.

The issue of visual artists' rights has come of age in America. As the art-historian Helen Gardner said, "A work of art... is a form created by the artist out of human experience. At the same time it has a cultural context. It exists in time, and its form reflects the forces of that time-social, economic, political, and religious."

Or, more concisely, Harold Clurman once stated, "Man is in this world to do more than pay taxes and brush his teeth-and that is where the arts come in.'"

There is an unfortunate problem, however, in that too often a work is treated simply as a physical piece of property, rather than as an intellectual work, like a novel. But artworks are intellectual expression, not just physical property, and it is time that visual artists receive the fundamental copyright protection for the integrity of their work already provided to the authors.

Indeed, it is paramount to the very integrity of our culture that we preserve the integrity of our artworks as expressions of the creativity of the artist. This bill recognizes that title to the soul of an artwork does not pass with the sale of the artwork itself.

The Visual Artists Rights Act would give artists the right to claim authorship of their works; to disclaim authorship of a distorted or mutilated work; and to bring a civil copyright claim for willful destruction or mutilation of their works.

The bill differs from the one that I introduced in the 100th Congress in that it does not include the resale royalty provision, thereby representing a reworking and compromise to meet previous objections. I would like to state that I have the utmost confidence in this compromise and would like to see moral rights pass on its own merits. The bill does call for a feasibility study of resale royalties for certain works of art so that the artist may share in some of the wealth as the value of their work increases. But that will be subject to a study and that's consistent with the types of questions which Mr. Moorhead raised in the last Congress.

At the time I offered H. R. 3221, the Visual Artists Rights Act of 1987, an example of irretrievable and irreparable damage had recently occurred-damage which passage of the bill we are discussing today will protect against.

Two Australian mail order entrepreneurs bought a Picasso linocut print, entitled "Three Women" [Trois Femmes]. They cut this Picasso into 500 pieces, each one inch square, to be sold at $135 apiece, complete with a certificate of authenticity and a 30-day money back guarantee. They placed newspaper ads which read: "Yes, your very own beautiful framed Picasso piece, in the most original and exciting offer.... And you can own a piece of the work yourself."

One of these entrepreneurs, David Robertson, was quoted as saying, "If this thing takes off, we may buy other masters as well and give them the chop."

We don't want profiteers roaming the world giving artistic masterpieces the chop.

Unquestionably, none of us would like to see our name attached to intellectual works presented to the public in an altered or mutilated form. This is the moral standard for which H.R. 2690 stands. Another example of irreversible damage occurred to a work by Alexander Calder. A mobile, painted black by the artist in tribute to a dead friend, was acquired by a gentleman from Pittsburgh. He subsequently donated it to a local airport. There, it was repainted in the Allegheny County colors of gold and green, not to mention that it was not allowed to rotate.

Again, our legislation would address this gap in American law by recognizing that, as original expressions of the artists' creativity, works of visual fine art embody intellectual property which can and should be protected by copyright law.

A work of art is not a utilitarian object like a toaster. It is an intellectual work like a song, a novel, or a poem. We should not pretend that all connection between the artist and his work is severed the first time the work is sold.

It is important to realize that moral rights laws have already been enacted in several States, including California, Massachusetts, New York, New Mexico, Pennsylvania, Rhode Island, Louisiana, and New Jersey.

However, copyright_protection is properly a matter for, in my opinion, the Federal Government. A Federal law on moral rights would be far preferable to the hodge-podge of State statutes.

It is also important to realize that as of March 1, 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works. As a result, beginning March 1, 1989, copyright in the works of U.S. authors will be protected automatically in all member nations of the Berne Union. Conversely, beginning March 1, 1989, works of foreign authors who are nationals of a Berne Union country and works first published in a Berne Union country are automatically protected in the United States.

Because our adherence to the Berne Convention does not specifically incorporate artists' moral rights, I believe it is all the more appropriate and timely to take up Federal legislation establishing moral rights for visual artists.

It is also important to realize that this legislation is limited to a class of copyrighted works that is unique and clearly distinguishable from every other class of copyrighted material. The specific language of the bill addresses only works of which there is no multiplicity. Thus, the bill is not applicable to forms such as video tapes, for the damage to one tape ruins only that particular copy. In conclusion, Mr. Chairman, in the last part of the 20th century, the United States has become the financial, political and intellectual capital of the world. We also have become the arts capital of the world.

We have a tremendous opportunity here to pass a piece of legislation that will not address the issues of movie colorization and royalties. The Visual Artists Rights Act of 1989 just addresses the rights of an artist to be able to retain the paternity and integrity rights to which any author, any sculptor, any artist is entitled. I thank you, Mr. Chairman, for the opportunity of appearing here this morning, and I'm glad to answer any questions.

Mr. KASTENMEIER. We appreciate your statement.

[The prepared statement of Mr. Markey follows:]

Statement of the Honorable
Edward J. Markey

before the

House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Administration of Justice

Hearing on

H.R. 2690

The Visual Artists Rights Act

October 18, 1989

Mr. Chairman,

First, I would like to commend you for holding this hearing and to thank you for the opportunity to testify today. I am also proud to have Chairman Kastenmeier as a cosponsor of the subject of this hearing the Visual Artists' Rights Act of

1989.

The purpose of the bill 1989 is to fill a gap in copyright law by recognizing that artists who work in painting, drawing and sculpture are intellectual authors who deserve protection for their works.

...

The issue of visual artists' rights has come of age in America. As the art-historian Helen Gardner said, "A work of art is a form created by the artist out of human experience. At the same time it has a cultural context. It exists in time, and its form reflects the forces of that time social, economic, political, and religious." Or, more concisely, Harold Clurman once. stated, "Man is in this world to do more than pay taxes and brush his teeth- and that is where the Arts come in..."

There is an unfortunate problem, however, in that too often a work is treated simply as a physical piece of property, rather than as an intellectual work, like a novel. But art works are intellectual expression, not just physical property and it is time that visual artists receive the fundamental copyright protection for the integrity of their work as that which is already provided to authors.

Indeed, it is paramount to the very integrity of our culture

Testimony.
Page 2

that we preserve the integrity of our artworks as expressions of the creativity of the artist. This bill recognizes that title to the soul of an artwork does not pass with the sale of the artwork itself.

The Visual Artists' Rights Act would give artists the right to claim authorship of their works; to disclaim authorship of a distorted or mutilated work; and to bring a civil copyright claim for willful destruction or mutilation of their works. The bill differs from the one that I introduced in the 100th Congress in that it does not include the resale royalty provision, thereby representing a reworking and compromise to meet previous objections. I would like to state that I have utmost confidence in this compromise and would like to see moral rights passed on its own merits. The bill does call for a feasibility study of resale royalties for certain works of art so that the artist may share in some of the wealth as the value of their work increases.

At the time I offered H.R. 3221, The Visual Artists' Rights Act of 1987, an example of irretrievable and irreparable damage had recently occurred damage which passage of the bill we are discussing today will protect against.

Two Australian mail-order entrepreneurs bought a Picasso linocut print, entitled "Three Women" (Trois Femmes). They cut this Picasso into 500 pieces, each one inch square, to be sold at $135 apiece, complete with a certificate of authenticity and thirty-day money back guarantee. They placed newspaper ads which read: "Yes, your very own beautiful framed Picasso piece, in the most original and exciting offer... And you can own a piece of the work yourself."

a

One of these entrepreneurs, David Robertson, was quoted as saying "if this thing takes off, we may buy other masters as well and give them the chop."

We don't want profiteers roaming the world giving artistic masterpieces the chop.

Unquestionably, none of us would like to see our name attached to intellectual works presented to the public in an altered or mutilated form. This is the moral standard for which H.R. 2690 stands.

Another example of irreversible damage occurred to a work by the famous Alexander Calder. A mobile, painted black by the artist in tribute to a dead friend, was acquired by a gentleman from Pittsburgh. He subsequently donated it to a local airport. There, it was repainted in the county colors of

Testimony
Page 3

gold and green, and kept in a stern, unyielding position because the new owners did not realize that a mobile is supposed to rotate. Again, our legislation would address this gap in American law by recognizing that, as original expressions of the artists' creativity, works of visual fine art embody intellectual property which can and should be protected by copyright law.

It is important to realize that moral rights laws already have been enacted in several states, including California, Massachusetts, New York, New Mexico, Pennsylvania, Rhode Island, Louisiana, and New Jersey. Thus, moral rights statutes are already in effect in the major art markets of New York, Boston, Los Angeles and Philadelphia.

However, copyright protection is properly a matter for the federal government, and federal law on moral rights would be far preferable to a hodge-podge of state statutes.

It is also important to realize that as of March 1, 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works. As a result, beginning March 1, 1989, copyright in the works of U.S. authors will be protected automatically in all member nations of the Berne Union. Conversely, beginning March 1, 1989, works of foreign authors who are nationals of a Berne Union country and works first published in a Berne Union country are automatically protected in the United States.

Because our adherence to the Berne Convention does not specifically incorporate artists moral rights, I believe it is all the more appropriate and timely to take up federal legislation establishing moral rights for visual artists.

It is also important to realize that this legislation is limited to a class of copyrighted works that is unique and clearly distinguishable from every other class of copyrighted material. The specific language of the bill addresses only works of which there is no multiplicity. Thus, the bill is not applicable to forms such as video tapes, for the damage to one tape ruins only that particular copy.

Conclusion

Mr. Chairman, in the last part of the twentieth century, the United States has become the financial, political and

intellectual capital of the world. We also have become the arts capital of the world.

With that leading status comes the responsibility for