3. Waivers in General [Section 3(e)]

The bill provides that the rights of integrity and of attribution may be waived. As drafted, the waiver provision is probably consistent with article 6bis of the Berne Convention. That treaty specifies the independence of moral rights from economic rights, but does not clearly prohibit their waiver. On the other hand, the independence of moral and economic rights under Berne also implies that a grant of economic rights does not of itself entail a waiver of moral rights. Rather, respect for the independence of moral rights suggests that any waiver, to be effective, must be stated with considerable specificity. Were a federal visual artists' rights law to permit art owners and exploiters to shake off artists' rights restraints by means of a blanket, boiler-plate waiver, then we would be honoring the precepts of the Berne Convention in only the most formalistic, indeed cynical way. Happily, the bill as drafted requires that any waiver be specifically set forth both respecting the work and the owner's use. The bill thus denotes sensitivity to the specificity of moral rights, while introducing a degree of flexibility toward owners/exploiters permissible under Berne.

Arguably, the best recognition of moral rights would countenance no waivers. This position, however, is probably too extreme for the U.S. system, nor does Berne require it. As a practical matter, moreover, despite their formal prohibition, de facto waivers are likely to occur. The artist is better protected under a regime requiring specificity of waivers than under one where an ideologically pure no-waiver law is rarely in fact observed.

The bill permits pursuit of artists' moral rights claims and demands for statutory damages and attorneys fees without prior registration of copyrights with the Register of Copyrights. This separation of moral rights from copyright litigation prerequisites is entirely appropriate and should be preserved. First, with respect to presuit registration, it is clear that no such requirement may be imposed on moral rights claimants from other Berne nations. Arguably, as in the Berne Implementation Act, a "two-tier" solution favoring foreigners over U.S. nationals could be adopted, but such a step seems quite undesirable. main beneficiaries of a U.S. moral rights act, after all, should be U.S. artists; why should they encounter special hindrances?

The

More importantly, with respect to both pre-suit registration and statutory damages and attorneys fees, moral rights are particularly inapt subject matter for imposition of formalities. Moral rights claims go to creators' reputations, not to rights of economic exploitation. Formalities may assist third parties in determining whether a work may be freely copied, or in stocking the collections of the Library of Congress. With or without a moral rights regime, the owner of exploitation rights must still deposit copies with the Library of Congress. As for the acts of third parties, arguably, registration of

moral rights interests might supply notice that certain artists object to the mutilation of their works, or desire that their authorship be acknowledged. But it does not follow that third parties should conclude from the absence of registration that works may be defaced and authorship credit denied. The point of enacting moral rights legislation is to create a climate of exploitation and ownership of artworks which condemns such acts. A moral rights law should help foster a creative environment in which artists may anticipate some security for their works and their reputations. To overlay formalities is to suggest that artists' rights are an exception. But genuine adoption of visual artists' rights entails recognition that the general rule should be one of preservation of artworks and the acknowledgment of creative authorship.

Conclusion

The Visual Artists Rights bill would afford valuable safeguards of the interests of artists and of the public in artistic creations. The three areas requiring greatest reconsideration or amplification concern the scope of the right of attribution; the definition of protectible works; and certain aspects of the regime governing works incorporated in buildings. The right of attribution is qualitatively different from the right of integrity, and should be addressed in its own terms. While the right of integrity may appropriately be limited to originals and limited editions of up to two hundred, neither the artist's interest in recognition, nor the public's interest in information stops at the 201st copy. The definition of a protectible work should be revised not only with respect to the right of attribution, but with respect to the right of integrity. As drafted, the definition is unduly cumbersome, and would result in witholding protection from works of undeniable artistic value. Conciliation of chattel-owners' and artists' interests may be achieved by defining the scope of the right of integrity to include the original copies and limited editions (up to 200) of pictorial, graphic or sculptural works. Finally, the regime governing artworks incorporated in buildings should be revised to afford artists, at the very least: for removable works, a reasonable period of time to seek a buyer or other assistance in removing an artwork which the building owner would otherwise destroy or modify; and, for unremovable works, a right of access to photograph or otherwise make a record of the imperiled artwork.

H.R. 2690, Visual Artists Rights Act of 1989 [1990]

Additional Statement of Professor Jane C. Ginsburg, Columbia University School of Law, addressing questions raised during the Hearing of October 18, 1989

1. In response to Representative Kastermeier's inquiry (transcript at 66) concerning "the precedential implications of enacting this law for other forms of expression," I wish to add the following observation:

There is one respect in which enactment of this bill could, and in my view should, serve as precedent for other areas of creation. Most of the discussion has focussed on the right of integrity, and on its specificity to art works. But the bill also affords a right of attribution. This right appropriately applies beyond the realm of the visual arts. Indeed, litigation under § 43 (a) of the Lanham Act has already afforded a kind of right of attribution in the context of literary works, see Dodd v. Ft. Mead Special School Dist., 666 F.Supp. 1278 (W.D. Ark 1987); Marling v. Ellison, 218 U.S.P.Q. 702 (S.D. Fla. 1982), of sound recordings, see Lamothe v. Atlantic Recording Corp., 847 F.2d 1403 (9th Cir. 1988), and of audiovisual works, see Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981), see also Gilliam v. ABC, 538 F.2d 14 (2d Cir. 1976). I see little reason to confine the creator's right to receive recognition for his work, and the public's right to be informed about the source of the work, to works of visual art, particularly as such works are restrictively defined in the bill. As the Lanham Act cases indicate, those same interests are present throughout the range of copyrightable works. With respect to the right of attribution, then, I would hope that this bill serves as a first, not the last, step toward extending this guarantee to all creators and their publics. The experience garnered under this bill may help fashion attribution rights for other copyright domains.

2. In response to Representative Fish's inquiry whether recognizing the attribution and integrity rights of foreign artists even if their works do not originate in treaty countries is "going too far" (transcript at 71), I wish to add the following observation:

This bill has a strong public interest component: we protect artists' rights not only because artists may be particularly worthy strivers, but because the public benefits from identification and preservation of their works. Once the artwork is in the U.S., and therefore is present (in fact, or potentially) before the U.S. public, it should not matter what was the country of its provenance. Once the work is in the U.S., the viewer enjoys the work for itself, and most likely not for the (probably unknown) nationality of its creator. By the same token, the loss to our culture from the work's subsequent mutilation or destruction is the same whether the artist was a Frenchman or a Saudi. It seems an absurd, and perhaps pernicious, policy to welcome destuction of works which enrich our nation simply because the artist had the misfortune to be born or reside in a country with which we do not now have copyright relations.

Mr. KASTENMEIER. Now we'd like to hear from Mr. Koegel.

STATEMENT OF JOHN B. KOEGEL, ESQ., NEW YORK, NY

Mr. KOEGEL. Visual art is something that I think we're still number one in worldwide; it's made in America and produced by Americans. None of our artists are public companies so it should remain that way.

So while I understand that this issue is perhaps not the most important thing on your legislative agenda, the activities of visual artists do form a small but vital piece of the matrix that makes up contemporary society. And they give us a spirit, a sense of innovation, a sense of inspiration and a public conscience that is indispensable in our society.

I think everybody recognizes that the pieces in the National Gallery east wing across The Mall or the ones in the Hirshhorn on this side are important objects, but the source of these objects are the individual artists-hard working people, who put themselves in public judgment out of a passion for self-expression.

These people rarely come to you for anything. And I think that if you look at the one thing you do do from time to time which is to engage in public funding-the amount of money that is spent either directly or indirectly on this group is minuscule. And, of course, the amount that they receive of public funding is a fraction of what is given to the "arts."

So I believe that this bill is a tremendous opportunity for Congress to do a good thing for American artists. It's better than a proclamation because it does something actually good and it does it at no cost; there is absolutely no opposition to it. It's the right thing.

I really have a tremendous amount of praise for you, Mr. Chairman, Congressman Berman, and Congressman Markey, and Senator Kennedy for taking this issue up-virtually on your own—realizing that there's a deficiency in the law and realizing that this would be a positive piece of legislation. And it's been done with tremendous sensitivity; and I don't mean political savvy.

The staffs on both the Senate and House have really-I've been viewing this process from its inception-gone out of their way to try to take into account the concerns of the people who would be affected. They have even distilled about the merit of argument of groups which may have wanted to derail the legislation just for the sheer desire of doing so.

As a purist, or an advocate for artists' rights, I suppose I could argue for more; that is ask for more things. I could probably make some little technical objections here and there, but once again, viewing this from the beginning and viewing it now, the bill that you have before you right now is a good bill. It preserves the integrity of the concept intact.

This judgment is not only one that I give from my perspective as primarily representing individual artists, but I also spent a long time inside the museum-as attorney for a major museum-thus I feel I have a museum perspective on this. I represent a lot of art dealers and collectors so I feel I have their perspective as well. I also represent a few art magazines, so I know what their publish

ing concerns are. Finally, I'm on every bar association possible that could have looked at this, and here I can tell you, believe it or not, that there is no opposition or disagreement among lawyers-as incredible as that may seem.

I think one of the things also that you have to do when you look at this bill is that you have to accept the proposition that artists are not interior decorators, that they do not make objects for the purpose of having them be beautiful. They may be beautiful in the eyes of beholders, but they are personal visions of reality. They speak about life and our issues in a very personal way.

Some works take longer to communicate than others. So giving the artist the right to preserve that expression for a reasonable period of time-the period of time given to the copyright right-is all this bill seeks to establish.

Finally-and one of the things that seems to be a little bit all over the lot in the earlier testimony-this concept is a copyright concept; these rights belong squarely in the copyright law. This isn't some theory that we're sort of plucking from France and saying that we'd like to graft it onto the U.S. law. I think we have a system here now that says that artists' are supposed to be encouraged to disseminate their product. And when you do you've got a bundle of five rights that are given by the copyright law. This law applies to seven groups, and pictorial, graphic and sculptural works is one of those groups. And within that group you have painting, sculpture, drawing, and prints and photographs.

If you look at painting, sculpture, drawing, prints and photographs, you'll see that the five rights in the bundle really don't apply at all to this group. Yes, the right of reproduction technically applies, but as a practical matter, the thing that we're really talking about here is the ability to preserve the creative statement.

So if you're talking about a system of security, giving the artist the fundamental right to be sure that that statement remains the same, these artists don't have it and all the other disciplines do. So the idea behind this legislation is to make the copyright law uniform. The bill is not giving some special right to this particular

group.

Finally, you've heard about a few celebrated cases. I've been asking my clients generally from time to time, if they ever had a moral rights problem in the past? And almost to a person, they have all had some problem. It hasn't become well-known so you may only hear about five or six over and over, but it's all happened to them. And, of course, they've been unable to do anything about it.

If you had gone to New York in July, you would have heard from James Rosenquist, a well-known painter and sculptor. Jim would have told you that in 1962, he made a four-panel piece. He sold it for $1,000. In 1988, Sotheby's auctioned off one of the panels, and it was on the cover of the catalog, for $45,000; and it was subsequently resold for $150,000. Jim's only been on the cover of the Sotheby's catalog once before in his life; so the second time he's on it's for a piece that is not his work-I mean, it's only one portion of the entire piece and it's sold by itself as a work of art by him.

Also, volunteering to testify in New York in July was Red Grooms, another well-known artist. If he had been called to testify,