a viewer appreciating it or not. It can be replicated through photographic and printing processes with necessary changes of scale and discrepancies in texture, color, and the like, that are inherent in any such process. A piece of music on the other hand does not exist until it is performed. That performance, moreover, is ephemeral. The music score itself is really a set of instructions to another person on how to achieve a close approximation of what the composer had in mind. There must necessarily be royalty arrangements to handle compensation for a composer since his music exists only when played. The set of instructions themselves have no more value than the cost of publishing them. The desirability of playing that music may increase in time or may disappear, just as the desirability of owning a work of art may increase or disappear. It is important then to recognize the distinction between the physical existence of the visual work of art. It is property and is a commodity. The visual work of art also tends to be unique, or at least limited to a serial edition. The situation with music and with printed material is different. We can produce as many copies of the score of Beethoven's Ninth Symphony as we wish or as many copies of Edgar Allen Poe's works as the market will absorb. drafting new legislation this distinction is important.

In

The artist of a visual work of art is compensated for his production at the time it is created or when it first passes from his control to that of a subsequent owner. It may happen directly or it might be via a dealer. Heretofore, and throughout much of our history, a work of art has been treated as property and all rights transfer to the new owner. The transfer of rights was modified slightly with the change in the copyright laws to protect contemporary artists. It must be recognized in drafting any legislation, moral rights legislation or contractual, that most works of art decline in value. imposition of legislation that would encumber subsequent owners from disposing of or treating the work of art as they wish, may work to the detriment of young and emerging artists. That is why I believe that if moral rights legislation is passed, the artist must have the right to waive those rights.

The

Let me give you concrete examples from the world of art museums. A frequent ploy adopted by artists and their dealers to gain recognition for the artist is to donate works of art to museums. The dealer and artist may do this directly, or they may enlist the aid of a patron who will be persuaded to buy the work of art and then, in turn, donate it to an art museum. This has marketing consequences because it enhances the reputation of the artist and therefore his saleability to be able to claim that certain museums have his works represented in their collections. It adds to the prestige of the artist. In accepting the work of art, the museum weighs the usefulness of the work of art, the potential importance of the work of art and

the artist, against the burden of ownership, and the moral obligation museums feel to care for works of art in their charge. Too often museums accept works of art to be nice to artists. Very often those works of art are accepted, even though the museum knows that they will be seldom if ever displayed. In some cases, of course, the work of art will be of great quality and the artist will go on to achieve a great success. Please remember that very few artists are actually successful and achieve reputation, fame, and the wealth that the news media sensationalize these days. Successful ones are the rare ones. Most artists do not produce great works of art.

What will a museum do if the museum does not have unencumbered rights over the work of art? Museums are likely to be much more reluctant to accept gifts of works by emerging artists. Such an outcome would not obviously be beneficial to emerging artists. Having unencumbered title to sell the work of art, to dispose of it, or even to destroy it, is important to museums.

Following along this thinking, please remember that our societies, all of them, have produced far more works of art that have not stood the test of time than those that have stood the test of time. Those that have stood the test of time are eagerly sought after, fill our museums, bring our societies great joy and often fetch great sums. But our societies in time must be free to allow the works of art that do not stand that test of time to disappear from history, to fall gradually into decay and thence to pass out of existence. It would not be good, in general, to have legislation which forces collectors or museums to keep in good condition works of art that are marginal and have not stood the test of time. We simply must allow for the natural disappearance of things.

I also think that any legislation which tries to help artists by allowing them to participate beneficially in the increase of the value of their works of art is bound to help only the handful of very successful artists and is equally bound to hurt the sale of artists who are emerging or whose works of art will not live beyond their time and their epoch.

Can regulations governing contracts between artists and buyers help in the above situation? I think the answer is yes, provided the artist's hand is strengthened so that the artist is not totally at the mercy of the need to sell his works.

I might also point out a technical matter in our industry. This again has to do with the desire of artists to place their works in museums and to gain recognition in juried exhibitions. Art museums, believe it or not, have a terrible problem with artists abandoning their works of art. Works are submitted for juried exhibitions, and if the artist is not successful, he often simply abandons the work of art and leaves the art museum stuck

with the problem of caring for it, storing it, and so forth. 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

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.

With every good wish,

MFW:rm

CC: Mr. Darrell Panethiere

c/o Senator Orrin Hatch

Cordially yours,

Dan Itali

Marc F. Wilson
Director

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 ŠANT. 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