-- one

for most works, destruction rights and moral rights are distinct protecting the work (preservation) and the other protecting the author, for works such as single copy works of art, the two rights are not inconsistent. Moral rights protect the author's interest in being known to the public through the work as originally conceived. These rights may also serve the public interest -- especially with regard to works of art.

Finally, consideration of visual artists' rights is well under way in several states. Congress should weigh the benefits of creating a federal visual arts moral rights system in view of the growing number of state visual artists' rights laws.

B. STATE LAWS

State visual artists' rights laws have more than doubled during the last five years. States enacting moral rights for visual artists may be categorized as following one of three models: the preservation model, the moral rights model, or the public works model.

States following the preservation model seek to protect artistic works from destruction in addition to providing for attribution

integrity rights.

are provided.

and

In other states, only the moral rights of paternity and integrity Destruction is not, strictly speaking, a violation of a moral right in those states, since where the work is destroyed, the moral right can be considered extinguished. Nothing is left to which the right can

attach.

The public works category is least related to copyright and more related to state police power. It seeks to protect works from vandalism.

- 5

These laws safeguard state treasures, antiques, and other works of histori cal or other value as a normal exercise of keeping the peace. As a subset of moral rights laws, at least one state has restricted (perhaps experimentally) moral rights and preservation rights to works that are displayed in public buildings.

In 1979, California became the first state to enact moral rights

legislation.

The California Art Preservation Act seeks to preserve works of fine art and protect the personality of the artist. The Act prohibits the intentional "defacement, mutilation, alteration, or destruction of a work of fine art." Where the alleged mutilation was associated with an effort to conserve a work of fine art, evidence of gross negligence is required. Additionally, the artist has a right of attribution, and "for just and valid reason, " the right to "disclaim authorship of his or her work of fine art." The rights of attribution and integrity may be waived by written contract. Owners of buildings who wish to remove a work of fine art capable of removal without mutilation are subject to liability under the Act, unless they attempt to notify the artist of their intention and provide the artist with an opportunity to remove the work. Where the work is not capable of removal without mutilation or destruction, unless the artist has reserved moral rights in writing, they are deemed waived.

2 Cal. Civ. Code (987 (West's Anno. Cal. Codes Supp. 1989).

The 1988 Connecticut law, also a preservation and moral rights statute, contains a detailed definition of works of fine art, including calligraphy, craft works, and photographs, provided they have a minimum market value of $2500. Works made for hire are excluded from the definition

of works of fine art. Under this Act, the artist may waive his or her rights in writing. As amended in 1988, the Connecticut Act provides a lifeof-the-author plus fifty year duration for moral rights. The provisions on removing art from buildings are similar to those in the California Act, except that in Connecticut, the artist's reservation of rights must be recorded in the state real property records.

If a

Passed in 1984, the Massachusetts statute prohibits "the intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art." The artist retains a right of attribution and the right to disclaim authorship "for just and valid reason." work of fine art cannot be removed from a building without substantial alteration, the prohibitions of the Act are suspended unless a written obligation signed by the owner of the building has been recorded. If the work is capable of being removed without mutilation, then the prohibitions of the Act apply unless the owner notifies the artist and provides the artist with an opportunity for removal.

4

Mass. Gen. Law Chap. 231, Section 86S (West Supp. 1988).

destruction and establishes moral rights for protected works. Much like the California law, the Pennsylvania Act applies to works of recognized quality. In addition to special rules on removal of works of art from buildings, the Pennsylvania law excuses from liability for alteration or destruction those owners who remove works of art in "emergency situations." Conservation activities that are not grossly negligent are also not actionable.

2. Artists' Rights Statutes.

Louisiana

Passed in 1986,

Louisiana's

Artists' Authorship Rights Act

protects visual or graphic works of recognized quality in any medium reproduced in not more than 300 copies. Motion pictures, however, are excluded, as are works prepared under contract for advertising and trade, unless such contract provides otherwise. Rights of attribution and integrity are granted, but destruction is not covered, with the exception of art on buildings. Rights in such works are subject to a special reservation, which is required also by several other state statutes. Alterations that occur as a result of conservation efforts are not actionable unless the alteration is the result of gross negligence.

when the work is publicly displayed.

Louisiana's rights attach

5

6

73 P.S. Ch. 31, Sec. 2101 ff.

Louisiana Statutes Ann. Ch. 34, Sec. 2151 et seq. (West 1986).

Maine

8

and

In 1985, Maine enacted moral rights for artists of visual or graphic works without restriction as to quality. Similar to the Louisiana Act, Maine attaches the rights to public display within the state, excuses conservation activities except for gross negligence. The artist can claim authorship or disclaim it "for just and valid reasons," which includes modification likely to cause damage to the author's reputation. No special requirements are established for removal of works of art from buildings.

The New Jersey Artists Right Act of 1986 provides protection like that of Maine. It excludes motion pictures and makes no special provisions

In 1984, New York passed its New York Artists' Authorship Rights Act. The statute prohibits the display of an "altered, defaced, mutilated, or modified form" of a work of fine art which damages the artist's reputation. There is no explicit prohibition against destroying a work, although destruction in the context of damaging an artist's reputation might fall within the Act. The artist additionally has a right of attribution, and the right to disclaim authorship for good cause.

Conservation does not

7

Maine Revised Statutes Ann., Title 27, Section 303 (West Supp.

1988-89).

8

New Jersey Session Law, Chapter 97 (West 1986).

9

N.Y. Arts & Cultural Affairs Law, Section 14.03 (McKinney's Consolidated Laws Anno., West 1987).