matter, we have not perceived any effect that the statute has had on the art market in California. Since resale royalty laws exist in countries throughout Europe and in other countries throughout the world, I really doubt whether the adoption of federal resale royalty legislation would create an exodus of collectors from the United States or the transfer of art sales activities to other countries. On the other hand, in marginal cases, collectors will be encouraged to buy works of deceased artists rather than works of artists entitled to collect resale royalties. However, this effect can be minimized by minimizing the royalties themselves and restricting the conditions under which royalties must be paid. 4. California has been a states have followed that leader in Visual Artists' Rights. How many other lead and enacted bills that afford visual artists protection beyond that available under fair competition, defamation, and invasion of privacy laws? In those states that do not have specific statutes addressing moral rights, have artists not been able to protect their interests under existing laws? A: As we have been informed, eight states in addition to California have enacted artists' rights legislation, including New York, Massachusetts, Maine, Rhode Island, New Jersey, Pennsylvania, Louisiana, and New Mexico. We cannot tell whether artists in those states not having specific moral rights statutes have been able to protect their interests under existing laws. Certainly the right of integrity cannot be protected successfully without special legislation. Absent such legislation, an artist does not have the right to prevent destruction of a work if it is owned by someone else, except under very unusual circumstances. Moreover, past attempts to use defamation, invasion of privacy, and unfair competition laws have only been partially successful, and it is difficult for an artist to use doctrines adapted for other areas of commerce without undue litigation and expenses. 5. You suggest that if we decide to permit written waivers of statutory moral rights we should make sure that such a provision accomplishes two objectives, namely protecting artists from being coerced into granting waivers and ensuring that property containing works of fine art remains freely alienable. Would you provide us with suggested language that would accomplish these two objectives? A: Here is some proposed language mostly following that of the bill. Where a work of visual art has been incorporated in or An agreement described in subparagraph (a) that the rights conferred by paragraphs (2) and (3) of section 106A(a) shall apply, shall not be binding on any subsequent owner of the building or public structure except where such subsequent owner had actual knowledge of the agreement or where the written instrument evidencing the agreeing was properly recorded before the transfer of the building or public structure to the subsequent owner in the applicable State real property registry for such building or public structure. If the owner of a building or public structure wishes to If the work is removed at the expense of the author or the person described in section 106(A)(a)(2), title to that fixation of the work shall be deemed to be in the author or such person as the case may be. For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good-faith attempt to send notice if the owner sent such notice by registered mail to the last known address of the author or, if the author is deceased, to the person described in section 106(A)(a)(2). The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building or or described in section public structure, persons record their respect to that work, may The 106(A)(e)(2) with identities and addresses with the Copyright Office. which such Register shall also establish procedures under update the information authors or persons may recorded, and procedures under which owners of buildings or public structures may record with the Copyright Office evidence of their efforts to comply with this subsection. so Except as provided in paragraph (2), the rights conferred waived or otherwise be not (a) may by subsection transferred, except by an instrument in writing supported valuable consideration, expressly providing by good and for the waiver and specifically identifying (1) the work of visual art, (2) the rights waived, and (3) the uses of Any ambiguity in the work to which the waiver applies. the instrument with respect to waiver shall be resolved in favor of the reservation of rights by the author or, if the described in section author is deceased, by the 106(A)(c)(2). A "public structure" is public edifice either owned person any bridge, aqueduct, or other or operated by the United States Government, a State, a political subdivision thereof, any governmental agency therein, or or States owned by erected on land Government, a State, a any governmental agency TO SENATOR PATRICK J. LEAHY Q: (To Peter H. Karlen) In your written testimony, you described the destruction of several art works in California. Do you know of instances where the California Art Preservation Act has prevented the destruction of art works? A: Yes. These are the cases that make the statute worthwhile, not necessarily the litigation cases following mutilation or destruction. We have received numerous preliminary inquiries over the years from artists, collectors, dealers, and building owners asking about their rights in relation to altering or destroying works of art. Except when non-removable works were installed in buildings, for which there was invariably a waiver under the California statute (Civil Code Section 987(g)(3)), I do not recall destruction or mutilation of any work subject to these preliminary inquiries. Also, none of these inquiries, to my recollection, ever was connected with a case which resulted in litigation. In other words, when collectors, dealers, and property owners know about the legislation, it has a deterrent effect regarding destruction or mutilation. A building owner who is otherwise entitled to destroy a work under the California Civil Code, if knowledgeable, will first consult an attorney in order to confirm the waiver under the statute. In every case we have had involving an action under the California Art Preservation Act, the defendant did not know about the law. Q: (To Linda A. Cawley) What comments do you have concerning the provision in Senator Kennedy's bill that allows judges or other triers of fact to determine whether a work of art is of recognized stature? Do you believe that the judges can make an objective determination on this point? A: In the materials we submitted to the Subcommittee on June 20, 1989, we included two articles by Mr. Karlen, "Moral Rights in California," 19 San Diego Law Review 675 (1982) and "Aesthetic Quality and Art Preservation," 41 Journal of Aesthetics and Art Criticism 309 (1983). The question of deciding "stature" or "quality" was discussed in those articles. The conclusions reached therein still have merit. The law already makes judgments about aesthetic and artistic quality in many arcas. For example, certain works are immune from obscenity prosecutions if they have "serious" literary or artistic value, as per Miller V. California, 413 U.S. 15, 26 (1973). There are many laws governing historic preservation which result in protection of buildings based on not only on market value for historical significance but also on architectural and aesthetic value. Judges also must make judgments about fair purposes of estate, gift, and income taxes when one of the critical factors in valuing a property, such as a work of art, may be aesthetic or artistic value. Moreover, for decades judges made decisions about "art" status and artistic merit under the customs laws. (See Derenberg and Baum, "Congress Rehabilitates Modern Art," 34 N.Y.U. Law Review 1228 (1959).) In short, decisions can be and are made about stature, quality, and value within the realm of art. Furthermore, our litigation experience shows that decisions about stature or quality, as already made under the California statute, are not the difficult, pivotal decisions that one might imagine them to be. The typical art destruction case is brought by a well-established artist whose works have already enjoyed critical acclaim. The defendants in such experience, have not made a major issue of quality or stature. we cases, in Our Moreover, as cases involve have already noted, because most of the art destruction defendants who have commissioned, purchased, or already judged the work of art, the defendants are usually estopped from denying that the work is of recognized quality. For the most part, when the work is by a well-established artist, the question of stature is usually not seriously litigated by a defending party. Only when the work is by an unknown artist could the question become a serious issue. |