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or

public structure,

persons described in section 106(A)(e)(2) with

respect to that work, may record their identities and addresses with the Copyright orfice. The Register shall also establish procedures under which such authors

persons may update the information so 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.

or

or

Except as provided in paragraph (2), the rights conferred by subsection (a) may not be waived otherwise transferred, except by an instrument in writing supported by good and valuable consideration, expressly providing for the waiver and specifically identifying (1) the work of visual art, (2) the rights waived, and (3) the uses of the work to which the waiver applies. Any ambiguity in the instrument with respect to waiver shall be resolved in favor of the reservation of rights by the author or, if the author is deceased, by the person described in section 106(A)(e)(2).

or

or

or

A "public structure" is any bridge, aqueduct, other public edifice either owned operated by the United States Government, a State, a political subdivision thereof,

any governmental agency therein, erected on land owned by the United States Government, State, political subdivision thereof, any governmental agency therein.

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a

a

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TO SENATOR PATRICK ! 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?

are

cases

not

or

A: Yes. These

the

that make the statute worthwhile, necessarily the litigation cases following mutilation 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. А 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 areas. For example, certain works are immune from obscenity prosecutions if they have "serious" literary or artistic value, as

v. California, 413 U.S. 15, 26 (1973). There are many laws governing historic preservation which result in protection

per Miller

on

on

a

or

of buildings based

not only historical significance but also on architectural and aesthetic value. Judges also must make judgments about fair market value for purposes of estate, gift, and income taxes when one of the critical factors in valuing a property, such as work of art, may be aesthetic artistic value.

Moreover, for decades judges made decisions about "art" status and artistic merit under the customs laws. (Sce 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 cases, in our experience, have not made a major issuc of quality or stature. Moreover, as we have already noted, because most of the art destruction

involve 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 well-estabiished 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.

cases

a

art\quest2.sen

Senator DECONCINI. Thank you, Ms. Cawley.
Mr. Van Sant.

STATEMENT OF TOM VAN SANT, ARTIST, SANTA MONICA, CA Mr. VAN SANT. Thank you, Mr. Chairman. My name is Tom Van Sant. I am an artist and I reside in Santa Monica, CA. Thank you for inviting me to testify on behalf of the Visual Artists Rights Act. I am proud to speak for the national Artist Equity Association in support of this legislation.

I am a founding director of the Los Angeles Mural Conservancy, a member of the city of Los Angeles Department of Cultural Affairs Arts Advisory Committee and an advisor to the International Museum of 20th Century Arts and to Artist Equity Association. I have served on the faculty of the Otis Art Institute, Santa Monica College, and have been a fellow at the Center for Advanced Visual Studies at MIT. As president of Tom Van Sant, Inc., I have executeci more than 60 sculpture and mural commissions for public places in the United States and other parts of the world.

Thank you, Senator Kennedy, for introducing this important legislation which will extend rights across the country already enjoyed by artists in nine States, including California. Artists and the artistic heritage of California are protected by the California Fine Arts Preservation Act of 1979.

In California it has become clear that our legislation provides not only penalties for the destruction or mutilation of works of art, but also allows for secondary owners of wall murals or other works attached to architecture to become aware that they are beneficiaries and custodians of parts of our cultural heritage. The bill is limited to paintings and sculpture and specifically excludes motion pictures, art books, posters, and other commercial enterprises. As in our California legislation, this bill requires that an owner who does not wish to retain a work of art attached to his building must notify the artist and allow the artist to remove the work at his own expense. The only relief from this responsibility is in the event that the artist is not of legitimate standing or if the work cannot be removed.

This brings us to my personal experience regarding the loss of a major piece of mine. In 1966 I was commissioned by the Crocker Citizens Bank of California to paint a giant mural for the banking lobby of their new building in downtown Los Angeles. The building was designed by the great architect William Periera to be the tallest building in the city and the headquarters of the banking network. Periera proposed me for the commission and provided a freestanding, lightweight wall extending the full length of the banking lobby, to receive the mural. This made it easily removable. The mural was 13 feet high, 120 feet long, and required 2 years' designing and painting in my studio. Materials used were artist's acrylic on canvas, applied to the wall with clear acrylic adhesive. The commission price in 1966 was $40,000.

The subject of the mural was the history of California migrations. This began with the migration of the native American Indians from Asia, the Spanish explorers, and the building of the California missions, the rush of Americans to California following the discovery of gold at Sutter's Creek

Senator DECONCINI. Excuse me for interrupting you. I understand you have a slide or two that you would like to show; if you would like to do that now, perhaps we can put the rest of your statement in the record.

Mr. Van Sant. At your pleasure. [Slides being shown.]

Mr. VAN SANT. This is a detail of the center of the mural showing the portions of California migrations, the Chinese that came to work on the railroads, and the Americans coming across the country following the discovery of gold.

Finally, the largest migration to California was following World War II, people from all over the country moving to California for industry, entertainment, aerospace, and agriculture.

This building was opened in 1968 with festivities, and the mural was published by Crocker Bank with pride. Photo enlargements were used to decorate other branch offices and so forth, and it was enjoyed by many citizens and tours.

În 1982, Crocker Bank sold this building to Mitsui Fudosan, a Japanese international real estate and banking conglomerate. In 1984, Mitsui leased the building to AT&T. To accommodate its tenants, the new owners remodeled portions of the building and added another complete floor in the former banking lobby to hold AT&T's computers. As you can see down in the lower part of the picture, there is a quite small figure which shows the size of this mural.

When the building opened, I was notified by those wishing to view the mural that neither the painting nor the lobby was in evidence. My inquiries to AT&T and Mitsui were met with evasiveness and misdirection. AT&T engineers finally divulged the truth, but their sentiments were encapsulated in the expression, "You were paid, weren't you? What's your problem?”'

At the urging of Artist Equity Association I reluctantly filed suit against the principals for intentionally destroying this historic mural, on behalf of the public and on behalf of California's artistic heritage. The publicity surrounding this event was instrumental in informing California owners of works of art that they have a responsibility which goes beyond payment for the work. They also have the obligation to protect it against intentional or negligent damage. In addition, a work of art is an expression of the artist's personality; its destruction is detrimental to the artist's reputation. After many months of research, depositions, and negotiations, the suit was settled out of court.

In the past 3 years I have received many requests from art owners for guidance in the maintenance of murals and the care and disposition of art work touched by building renovations or de molitions. It has been gratifying to participate, through the Los Angeles Mural Conservancy, in the salvation of wonderful works which otherwise would have been lost.

With respect and appreciation, I urge you to support this important legislation. It strikes a balance between the interests of the artists and commercial and public institutions and our cultural heritage. The California precedent has been successful, free of any excesses or frivolous suits. This bill creates a needed national uni

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