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with the problem of caring for it, storing it, and so forth. If legislation is drafted and passed that would oblige an owner to care for a work of art and not negligently allow it to be damaged, then those owners certainly must be protected from artists who abandon their creations. In sum, I see many pitfalls to the enactment of moral rights legislation or the legislation that goes beyond strengthening the artist's position in making contractual obligations at the time of the sale of his work of art. I know that our society attaches great importance to art. It has almost become a hallowed thing. Let us also remember that it is a commodity as well as the record of an individual's creative efforts.

If there are any other thoughts or questions that you might have, you might ask a member of your staff to phone me. Senator Kenney recognized a need. We must be careful that we do not do more harm than good in meeting that need. The views expressed above are my own and do not represent the views of any other party or organization.

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Senator DECONCINI. Thank you, Mr. Wilson.

Mr. Van Sant, let me ask you this question. Your slide show and your personal involvement are of great interest to me. Could you have initially contracted for the preservation of this mural when you were employed to paint it, to do it, to create it?

Mr. Van Sant. I don't know how such a contract would have been made at that time, to preserve a mural through a second ownership. I don't know how it would have been protected except by virtue of the California Fine Arts Preservation Act.

Senator DECONCINI. You don't know of anything that would have prevented you from asking for such a contract, in whatever employment arrangement you had with them to create this work of art. Could you have sought to have the right to retrieve the work of art if the building were sold or transferred or if the owner wanted to change it? You could have entered into such a contract, but you didn't?

Mr. VAN SANT. As a young artist being given an opportunity to paint that mural, I can't conceive of being able to include in my contract its preservation through second ownership and so forth.

Senator DECONCINI. Is that because, as a young, new artist, you are less able to negotiate with large business interests because you are interested in getting your work displayed and you are interested in being able to do your work-but that business negotiations are not on your mind.

What about today, now that you are an accomplished artist? If you are commissioned to do some work of art, would you put that in a contract now?

Mr. VAN SANT. No, I have never known of that being put in a contract.

Senator DECONCINI. Even if you did some work outside of California, where you are not protected by the California law, would you think that that would be a proper thing to do?

Mr. VAN SANT. I work outside of California and have never included that in any contract.

Senator DECONCINI. On your belief that there should be some protective rights here, by your creation of your artistic work, right?

Mr. VAN SANT. Yes, sir.

Senator DECONCINI. Mr. Wilson, if you have work in your museum that you choose no longer to display-you've had it there for a period of time-I presume that you give it back to the artist, or you store it. Maybe you give it away, depending on the arrangement you have. If you store it in a warehouse or someplace that is not for public display, and yet when you took it from the artist he was under the impression that you were going to display it publicly, does this prejudice the reputation of the artist? Does he have a right to demand that

Mr. Wilson. Well, to the extent that he is not exposed and before the public eye, I suppose you could conclude that. I think there are practical matters. We must remember that most works of art in museums are really, in a sense, held publicly, even though they might be held for a private trust or foundation. They are held for the benefit of the public. We do not enter into any agreement with an artist to display a work of art when it is given to us, nor when we purchase it.

Senator DECONCINI. So you have no arrangements that you will or will not display it?

Mr. WILSON. No. That is correct. Again, we do feel a moral obligation to care for any work of art in our possession, whether we own it or not.

Senator DECONCINI. Well, if I was an artist and you and I agreed that you wanted to display my work of art and all of a sudden you put it up for a week and then you took it down, would I have a cause of action for you under this bill?

Mr. WILSON. I don't think so. This is about distortion and mutilation. This is not about exposure. We would not buy or accept on loan any work of art from a third party with a provision that we would have to display it in perpetuity.

Senator DECONCINI. Ms. Cawley, you indicate that the California law that is similar to the bill we have here has only generated about a hundred cases, and that only one of these cases—I think the Schnorr case-actually went to trial.

What was the disposition of most of the other cases, do you know?

Ms. CAWLEY. The majority of the cases that we have handled have settled. They generally settle at between 7 to 10 times the value of the artwork or the fair market value of the work at the time.

Senator DECONCINI. That's based on an appraisal value of the artwork?

Ms. CAWLEY. No, the actual cost. And that's not a fair assessment of the value because often, as we've discussed here, artists will work on artwork for much less than they should because they want to enhance their reputations. But 7 to 10 times the value is what we usually see in settlement.

Senator DECONCINI. A hundred cases is not very many cases. When was the California law enacted?

Ms. CAWLEY. Well, we get about 100 inquiries a year--
Senator DECONCINI. That's your law firm?

Ms. CAWLEY. Yes. Two to three phone calls a week for artists asking, “Do I or do I not have a case?”

Senator DECONCINI. And you file about a hundred cases a year?

Ms. CAWLEY. No, I'd say much less than that. Most cases we don't even get to file. On demand letters, we are able to settle the case based on the statute, because what we find is that most potential defendants didn't know about the statute.

Senator DECONCINI. Senator Kennedy.

Senator KENNEDY. Well, that's helpful, because I think one of the important issues to establish is whether this is really a problem. Some of us hear of the more notorious situations, but whether this is a common occurrence—something that is ongoing and continuing in the country-just personally, it is very disturbing to think that people are involved in these kinds of mutilations and changes. The country was absolutely startled at the time when the Picasso picture was chopped into 100 little pieces. It was something that people just weren't able to focus on.

What I hear from you is that these are very real problems. They are happening and not only in California where your area of practice is. That is your impression, and I would like to ask Tom Van

Sant also if this is, to his knowledge, happening in other places around the country. Is that correct?

Mr. VAN SANT. Yes, sir.

Senator KENNEDY. Now there are nine different States that have laws. How do you react to the question, "why not just let the States do it?" If we have nine States that are doing it, why do we need a Federal statute?

Ms. CAWLEY. The one that we just discussed is of knowledge to the users and the artists themselves. I think a Federal law would provide much greater knowledge to the mass public, to the general public, and to users. Galleries would inform artists; they would in turn inform the purchasers that this law is a Federal law. Newspapers would report it and cover it. State cases would come out, rendering different decisions. We would have a broader base to work with, but more importantly, we would have uniformity of law.

What we have seen in quite a few of our cases or inquiries is that when people ship artwork from one State into another State, they don't know where the damage occurred. If it was negligently packaged, then where did the damage occur? If it was in California, they would have a law to cover it. They would have redress; in another State, they would not. And with the States that do have similar statutes to California's, there are conflicts in those laws.

Senator KENNEDY. Well, your point, which I think is a very important one, is that you get a greater understanding, greater sensitivity, and greater awareness by the population generally with a Federal statute. The result would be greater preservation of art. You also testified that when you were raising these matters with individuals, they didn't have familiarity with them. In a great majority of cases once individuals know about them, they are quite prepared to respect the law-and not to take steps that might threaten the integrity of the art. Is that the case?

Ms. CAWLEY. Generally, our cases settle immediately upon the lawyers for the users learning of this act.

Senator KENNEDY. And you feel that the features that we have in our law, given your own experience, will provide that degree of protection?

Ms. CAWLEY. Very much so.

Senator KENNEDY. Should the national law preempt the State law?

Ms. CAWLEY. In general, yes, it should if it is prospective in nature so that any damage to work will be covered, and so long as it is not so broad that it preempts more specific laws in each individual State.

Senator KENNEDY. Well, I think it is important to get your answer. My understanding is that the only preemption is that which applies in the very narrow and limited area affected by this legislation. We are not preempting the related features of other State statutes that may provide some protection in other areas. Am I correct?

Ms. CAWLEY. I think that would be great. Under section 301 of the Copyright Act, that would be exactly what would be necessary.

Senator KENNEDY. And for the reasons that you outlined earlier, it is best to establish a national standard.

Senator DECONCINI. Would the Senator permit me to leave and leave you with the balance of the hearing?

Senator KENNEDY. I wanted you to hear this. [Laughter.]

Senator DECONCINI. I did, and I will, and quite frankly because I wanted to listen to the Senator I refrained from asking Ms. Crawley in particular a number of other questions which I would like to submit to her and the members of the panel.

Senator KENNEDY (assuming the chair). Again, I want to express our appreciation to Senator DeConcini for both his attentiveness to this issue and his interest in it, and for his willingness to work with us on this program.

I just have a few more questions. The first is on the question of frivolous claims or unreasonable numbers of suits. What is your reaction or your response to that?

Ms. CAWLEY. I would think that this bill would have just the opposite effect if it was made into law. I would think that it would deter frivolous claims. If you have legislation that is specific enough, which I think this bill is and as I think our California law is, it would deter frivolous actions. We often get calls from people who say, “Do I have a case? Is this a good case?” And we say, "Can you prove gross negligence? Can you prove reputation? Can you prove all of the elements?” When we have it right before us, we present it to the artist. They think about it and they weigh the merits. They have a choice, and then they do not bring an action.

Senator KENNEDY. So your own experience in California is that there haven't been frivolous claims or unreasonable numbers of claims?

Ms. CAWLEY. Definitely not. I think also that users are deterred from destroying or altering works of art when they learn of the law, as well.

Senator KENNEDY. Let me move to the issue of whether these rights ought to be waivable. Could you give me your opinion?

Ms. CAWLEY. I think they should not be waivable. They are waivable in California under specific restrictions: that they are in writing, which puts the cost of the transaction on the user, and if they are attached to a building and cannot be removed without causing harm to the building.

But with this legislation and with the Federal legislation here, I don't think it should be waivable because in effect it will destroy what we are making the law for anyway, which is that young artists are going to be forced into signing a waiver. If my clients were users or gallery owners, I would tell every one of them, "Get a waiver. Don't even take the piece of art; it might get damaged. Get a waiver.” All lawyers will be telling the users that. No artist will be able to get their work put on display without a waiver, and that defeats the whole purpose.

Senator KENNEDY. With respect to the standard of harm to honor and reputation-as you are aware, we have changed the standard in this version of the bill. I'm just wondering if that is too difficult or excessively burdensome for an artist to prove.

Ms. CAWLEY. I don't think so. I think that just by mutilation or destruction of a work you are able to prove damage to reputation, the fact that it is destroyed. It would be similar to defamation. In California, it is specifically provided for that when an artwork is

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