Senator DECONCINI. Thank you, Mr. Van Sant. Mr. Wilson. STATEMENT OF MARC F. WILSON, DIRECTOR, NELSON-ATKINS MUSEUM OF ART, KANSAS CITY, MO Mr. WILSON. Mr. Chairman, members of the subcommittee, thank you for this opportunity to participate in this discussion on Senator Kennedy's Visual Artists Rights Act. I am Marc Wilson; I am the director of the Nelson-Atkins Museum of Art in Kansas City. I am also the second vice president of the Association of Art Museum Directors. I, too, wear an academic hat; I was a professor at the University of Kansas. I am also your chairman of the Indemnification Program on the Federal Council on the Arts and Humanities. I will forgo reading my statement, as it has been submitted, and I will ask that it be made part of the record. If I may, I will depart from that and concentrate on a few issues. None here would deny the importance of the arts or of visual artists; they are a record of the spirit of our Nation. That certainly is not at issue. They are, as individuals and as an industry, part of a much larger complex. They are important to our society. There are many elements. There are those of us who are charged with presenting works of art to the greater public through museums, galleries, public galleries. There are those who sell works of art, trade in them, and profit from them. There are those who write about them, those who study them, those who publish and disseminate them to the interested publics. Whatever version is adopted in this bill will take into account that artists and art are an integral part of our Nation and that they are, indeed, part of the glory of our Nation. Turning now to the legislation under consideration, let me commend you for undertaking this and Senator Kennedy for bringing this bill to us. We must consider it; the status quo is not enough. It is very complex, and it will require considerable discussion. You have already had considerable discussion. I am here today to support the underlying concept of this measure, namely, to guarantee the integrity and the attribution rights of artists. Specifically, as a consensus of art museum directors we are in agreement with the intent of the legislation, particularly with respect to mutilation and the rights of the artist to associate or disassociate himself with his work. When first introduced there were problems with the legislation, and a good deal of thoughtful revision has taken place. I am pleased to acknowledge that. We have had clarification of opportunity and protection, and I really think that must not be sacrificed. Those of us who are charged with showing these works to the public-and indeed, very often acquiring them on behalf of the public-still have some concerns. The word "distortion" had been eliminated from an earlier version, and it is returned. I hope that word will be considered carefully. To those of us who install these works of art, that word could unnecessarily lead to litigation. The example of California suggests that perhaps it is not a great problem, but why risk it? Artists naturally have, as anyone involved with paternity, a great stake in that work of art and what they consider to be its proper presentation. A serious mislighting, perhaps changing the lights-if it is not properly lighted, "you have distorted my work." The other issue is questions of royalties, whether that is going to help the artists or not. I suspect that it might do more harm. I am very pleased to see that this has been assigned for study to the National Endowment for the Arts. One must also make a distinction between possession and ownership, as we possess many works of art which have come to us through involuntary possession. Finally, I think the question of transferability must be studied. Will it be harmful? Will it not? My own experience suggests that it may be harmful, particularly for the majority of artists. It may end up that both the sales royalties and the question of alienability will serve the interests of a small percentage of very successful artists and do nothing, or perhaps harm, the great majority of artists. I thank you for taking up this important work. [The prepared statement of Mr. Wilson and responses to questions submitted by Senator DeConcini follow:] Statement Presented by MARC F. WILSON DIRECTOR NELSON-ATKINS MUSEUM OF ART Before THE SENATE JUDICIARY SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS June 20, 1989 I am Mr. Chairman and members of the subcommittee, thank you for this Before I speak on legislation to provide certain rights to visual artists, I wish to comment on the vital role played by the individual creative artist in our society. America's growing artist community leads the world with vigorous innovations and sets a high standard of excellence. The men and women who are inspired to create works of art capture the essential human qualities of our time and enhance our understanding of our world and ourselves. The individual artist is not only a critical element of the arts community, but also a vital part of society as a whole. My institution in Kansas City, along with arts institutions across the country, have the enormous responsibility of preserving and articulating our cultural heritage, and fostering the creativity that is to become the patrimony of future generations. The success of this important mission is directly dependent on the artist. Their unique contributions must be taken seriously; and their rights and the works they produce are unquestionably worth protecting. With the well-being of our cultural community in mind, public policy must take on a new sense of vision. This new vision must reflect an understanding that the arts are an integral element of our civilization that they are vital to our national character and are among the greatest of our national resources. Turning to the legislation under consideration, let me first commend this subcommittee for its interest and attention to the important matter of visual artists' rights. The arts community is certainly in favor of safeguards against irretrievable damage to cultural properties. The Visual Artists Rights Act brings meaningful and extremely complex issues into the limelight, and I am here today to support the underlying concept of this measure, namely guaranteeing the integrity and attribution rights of artists. The We are in agreement with the intent of the legislation, however some specific concerns remain. As you may recall, there were problems with the bill introduced during the last Congress. new legislation offers considerable improvement, and we are pleased many of the questions raised last year were addressed. The moral rights provisions of the bill - pertaining to the rights of paternity and protection - have been partially clarified with a special exemption for legitimate conservation practices. Thus, last year's concern that conservation measures performed by museums to protect works of art might be affected by language that read "distortion, mutilation, or other alteration thereof" has been alleviated. Still at issue are possible implications of the use of the word "distortion." This term might be so extended as to apply to the manner of installation or framing of an art work in an exhibition setting, or even the color of the wall in the gallery containing the work. A revised draft of last year's bill deleted the word "distortion" and was modified to read, "significant or substantial mutilation, or other alteration." This was an important adjustment and we would hope that the same language will be included in the current legislation. As to the royalty section of the bill, substantial progress was made last year. We are pleased that a subject of this complexity would be referred to the National Endowment for the Arts and the Register of Copyrights so that it can be thoroughly examined before any action is taken. Briefly, one point on the royalty provision requires comment. The economic impact of this measure on most American art museums would be significant. These institutions are nonprofits and they operate with limited acquisition funds. The imposition of a seven percent royalty, as called for by last year's legislation, could lead to a reduction in acquisitions of contemporary art works by American artists. Again, resale royalties is an an extremely difficult and complicated issue. Deferring it until its consequences can be accurately measured is indeed a major improvement. In closing, I would like to thank the subcommittee for receiving me today and for recognizing the important role of America's artists. I applaud Senator Kennedy's effort to enhance public recognition of our nation's creative individuals and to protect their contributions to society. The intent of the Visual Artists Rights Act is most admirable. hope you will consider the clarifications I have outlined, and continue working with the arts community to move forward on providing much needed protection for our nation's artists. I The Nelson-Atkins Museum of Art 4525 Oak Street • Kansas City, Missouri 64111-1873 Telephone 816-561-4000 • Telecopier 816-561-7154 12th July, 1989 Senator Dennis De Concini Chairman Subcommittee on Patents, Copyrights and Trademarks Committee on the Judiciary United States Senate Washington, D. C. 20510-6275 Dear Senator DeConcini: Thank you for your recent letter of June 28 in which you invite me to answer the question, "Why then do we need moral rights legislation?" to provide further protection for artists. The immediate reply is that there may be some solution to the problem other than the adoption of moral rights legislation. The goal, it seems to me, remains the same. That goal is to provide greater protection and strengthen the hand of artists at the time of the creation of the work of art with respect to mischievous alteration of the image that would undermine or erode the artistic integrity of that work of art. As a concomitant to this goal, the artist's reputation should be secured from damage by such mischievous or unwanted mutilation or alteration of the work of art. The issue is very complicated. I was impressed at the Subcommittee hearings on June 20 with the arguments of the three lawyers with respect to the introduction of concepts of droit morale into our legal system, which is largely based on English concepts, particularly with respect to property and the rights of property owners. In a sense I subscribe to the views of the lawyers without, however, giving up the need, as Senator Kennedy has recognized, to strengthen the position of artists with respect to reasonable control over the maintenance of the artistic integrity of a work as it passes from his hands and thence from owner to owner. Legislation which helps maintain that integrity is, I think, needed. The legislation, however, should not in my view go much further. Let us continue by drawing a distinction between a work of art and a piece of music, for example. A work of art differs in that it is a tangible, physical object. It exists whether it is in storage, on someone's wall, or whether there is |