Testimony fostering, protecting and encouraging the arts. As Hugh Trevor Roper said, " Art and Literature are the true witness of all history that is worth preserving: they are the spiritual deposit which reminds us that we are the heirs of a living civilization." I believe that the bill before you is a step in that direction, and I look forward to working with the Subcommittee in moving it along. Thank you for your time and consideration of this legislation, and for permitting me this opportunity to testify. Mr. KASTENMEIER. While the three House cosponsors at the moment are yourself, Mr. Berman, and myself, I would hope before the day is out we could add the gentleman from California and the gentleman from New York, as cosponsors. Anyway, in any event, I-— Mr. MARKEY. What about the gentleman from North Carolina? Mr. KASTENMEIER. I didn't see him here he just came in and I didn't know he had arrived. We would welcome him, too, of course. Let me ask you a serious question or two about this. Would this bill apply to copies of prints? Would the same protection apply to a print of which there are, let's say, 150 copies? Mr. MARKEY. On page 2 of the bill, in lines 1 through 6, we define it as as "a 'work of visual art' is a painting, drawing, print, sculpture, or still photographic image produced for exhibition purposes only, existing in a single copy, in a limited edition of 200 copies or fewer, or, in the case of a sculpture, in multiple cast sculptures of 200 or fewer." Mr. KASTENMEIER. In other words, there is a clear delineation, at which point it becomes more or less a mass produced artwork? Mr. MARKEY. Yes. Mr. KASTENMEIER. You have indicated the view that we need a Federal law even though some of the States, including your own State of Massachusetts, do have State laws on the subject. Is it your view that the State laws will still coexist with the Federal law, or are they preempted by the Federal law? Mr. MARKEY. On this I would actually defer to your judgment, as we're moving forward, as to what you believe would be the proper way of dealing with this so that it is consistent with the historic copyright law. And I'm not really bound by that one way or the other. I think there's probably precedent here that you and your staff have- Mr. KASTENMEIER. The next witness is the Register of Copyrights and we will ask him his view on that for the record. I would like to yield to the gentleman from California, Mr. Moorhead. Mr. MOORHEAD. I'd just like to congratulate you on your testimony. You have been so persuasive that both Ham and I have agreed to go on as cosponsors of the legislation. This is a subject we've been hearing testimony on for several years and there have been some other compelling examples other than those you pointed out, where works of art have been desecrated in one way or the other. One man had painted a mural on a building on the freeway, halfway to Pennsylvania, and someone else was hired to come and repair it, and they made it into something that he was very dissatisfied with it. The artist does have certain rights that should be protected and I think we will take care of that. This is a very fine piece of legislation. Mr. MARKEY. Thank you. Mr. KASTENMEIER. The gentleman from California, Mr. Berman, a cosponsor of the bill. Mr. BERMAN. I don't know if this is a question to the chief sponsor or to the chairman. I notice in the chairman's opening com ment he pointed out that with the deferral of the royalty issue for a study and because this is limited, as Mr. Markey has indicated, to very specific items covered, a number of complicated questions are not really involved in this bill. And then he mentioned work-for-hire. When you have this still photographic image produced-I see, it's produced for exhibition purposes only. Is that what takes the photography out of the work-for-hire situation? Mr. KASTENMEIER. Yes, we've excluded works-for-hire, as you well know. Mr. BERMAN. Is there a specific exclusion of works-for-hire? Mr. KASTENMEIER. 19-any work made for hire. Mr. MARKEY. Made for hire. Mr. BERMAN. That may cover the subject. Mr. KASTENMEIER. I might also add, that the bill answers the question of whether this statute does in fact preempt State statutes. It does-there is a preemption section. We will solicit the Register's views on that for clarity. Mr. BERMAN. One question that will come up is the extent to which there is a conceptual justification for moving ahead in the area of works of visual art, without moving ahead or treating somewhat differently other areas, in particular audiovisual areas. I don't know if the gentleman has any conceptual basis at this particular point. Obviously, there is a good political reason to treat them differently and that is why I'd like to get a bill through as quickly as possible that deals with what's happened that you've been concerned about. But other than the question of who the creator is, which becomes a more complicated question in the area of motion pictures and audiovisual works, is there any other basis for the distinction between these kinds of works and audiovisual works? Mr. MARKEY. There would be significant definitional problems, without question. But I think the gentleman has in fact identified the single most compelling reason why we would seek to divide the issue. There is significant political support for this particular issue whereas the other issue will, I think, lead to an inevitable paralysis in terms of our ability to deal with the various perspectives which exist with regard, for example, to the colorization issue. Once I get past the question of whether or not-and I firmly believe that they should never colorize the Kansas scenes in the "Wizard of Oz"-but once I get past that issue, I find myself for hours being able to discuss the whole question. Here I think we've got a clear consensus from the community that is affected by it and we're able to frame it in a way that I think we could get it passed. Mr. BERMAN. I certainly don't want to imply that a compelling political purpose is not automatically sufficient, in any event, for separating the two issues. I'm just wondering if, by the by, there was also some underlying conceptual argument. Mr. MARKEY. It was never our intention, to be quite frank with you. It was basically something that was born out of an artist com munity that was separate from that Hollywood community. And, as a result, we've basically tried to ensure that that original intention is going to continue on. Mr. KASTENMEIER. I think the gentleman raised a good question. I tried in my opening statement to suggest that there were different reasons-there were compelling reasons to treat this separately from, let's say, audiovisual works-films. Definition is only one of them. I think that films, in terms of ownership, are protected by—in terms of the producing studio-by a set of contracts that are quite different than those that visual artists have in the way their works are protected after sale. For example, there are no complaints that I know of from studio owners of films about how their films are used. They generally physically control the films, except to the extent Mr. BERMAN. They are for the pirated copies that used to be shown with regularity at the University of California Berkeley campus. Mr. KASTENMEIER. Except for the question of piracy. Mr. BERMAN. Yes. Mr. KASTENMEIER. That is a different question. So I think we are really dealing with two different subjects. Even last year, however, the original bill-Mr. Markey's bill-did not presume to include audiovisual works, for a good reason. I yield to the gentleman from New York. Mr. FISH. Thank you, Mr. Chairman. I just want to also thank our colleague for his leadership in this matter. And as you've been told, before the day is over or the rain has stopped, I will be a cosponsor of your legislation today. Mr. KASTENMEIER. The gentleman from North Carolina, Mr. Coble. Mr. COBLE. Thank you, Mr. Chairman. I want to express my thanks to the gentleman from Massachusetts for emphasizing my presence here. That's the first time I think the chairman has overlooked me. He did not do so intentionally, I'm sure, but, Ed, it's good to have you here. Mr. Chairman, I came in belatedly, but I think if I interpret this legislation, it is narrowly drawn-as it should be-directing attention to art that has been produced generally by individual artists as opposed to legions of people as would be the case in the motion picture industry. And I think, Mr. Chairman, it has probably already been said, that our sponsorship or support of this legislation in no means implies that we are extending into the motion picture industry area-and I think that is the way it should be. Mr. Ed, I will say to you that I will be a cosponsor as my friend from New York said, before dusk. It's good to have you here. Mr. KASTENMEIER. When we started this hearing there were three cosponsors and now there are six, so we've certainly moved ahead. We thank you very much for your leadership on this issue, Congressman Markey. Mr. MARKEY. Thank you. Mr. KASTENMEIER. Our next witness is our distinguished Register of Copyright, Mr. Ralph Oman. Obviously, Mr. Oman needs no in troduction-he has been a frequent witness before our subcommittee-and we all highly value not only his testimony but his good work as Register, as well as that of his staff, two of whom will accompany him this morning. So I'm sure his testimony today will be as illuminating as it always is. Mr. Oman. STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS, LIBRARY OF CONGRESS, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL, COPYRIGHT OFFICE, AND WILLIAM PATRY, POLICY PLANNING ADVISER TO THE REGISTER OF COPYRIGHTS Mr. OMAN. Thank you very much, Mr. Chairman. I appreciate your kind words and they are especially appropriate in the case of my staff. Accompanying me to the witness table are Ms. Schrader, the General Counsel of the Copyright Office, and William Patry, Policy Planning Adviser to the Register of Copyrights. Thank you for the opportunity to testify on H.R. 2690, the Visual Artists Rights Act of 1989. The Copyright Office has always championed the rights of our creators, and I applaud the concerns that underlie the bill which are to give artists a fair shake in the marketplace. The bill would grant visual artists new Federal rights under the Copyright Act-a right to claim or disclaim authorship, which we know is the right of attribution; a right to prevent destruction, distortion, mutilation or other alteration of their works; and a right, in certain cases, to prevent the destruction of art work incorporated in buildings. Many foreign countries have for many years granted similar moral rights to artists and sculptors, and in many respects these rights already exist to some degree in the United States under various theories of State law, common law, and Federal fair trade law, what Mr. Markey referred to as a hodge-podge. Works of visual art present special challenges in copyright law because of the nature of their creation and dissemination. They are neither mass produced nor mass distributed. They often exist only in a single copy. After the sale of that unique work the first sale doctrine of the copyright law has prevented artists from sharing in the increased value of their works the way composers, playwrights and choreographers can. H.R. 2690 has been carefully crafted with an eye to the sensitivities of the marketplace and the interests of the artistic community. For the first time in Federal copyright history, it would expressly give visual artists a moral right as part of the Federal copyright law. The bill assigns the Copyright Office two new recordation functions. To acquire moral rights for a work incorporated into a building, the artist must sign a written agreement with the owner of the building. If the work can be removed without damage, the owner has to try to notify the author and give him or her 90 days to remove the work. |