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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

destroyed, there is damage to the reputation. I think it can be established with expert witnesses and testimony, and it can be over

come.

Senator KENNEDY. The harm to reputation exists in the California standard?

Ms. CAWLEY. Yes.

Senator KENNEDY. And the standard weighs more heavily in assigning damages than in establishing that an injury has occurred. OK.

Well, Mr. Wilson and Mr. Van Sant, if there are any comments on any of those questions that you would like to address or that you might take exception to, we will give you the opportunity. I think that during the course of the hearing these are the principal areas where there has been focus and attention. If there is any additional concerns or comments on these answers, we would hear you out.

Mr. VAN SANT. I have one thought I might offer. Most of the testimony deals with the negative consequence of destruction or mutilation. There is also a positive consequence to the legislation. In the State of California, first of all, it was several years before even the first action was taken. There were no frivolous suits. In 1987, we formed the Los Angeles Mural Conservancy, and this was as a direct consequence of the legislation, so now we have cataloged all the murals in the city of Los Angeles. When a building is purchased by a new owner, the Mural Conservancy notifies the new owner that they are the lucky owner of a work of art that is part of the heritage, and they offer their services for maintenance and restoration. Everybody wins and everybody appreciates it.

When a mural on the Beverly Wiltshire Hotel had to be removed for renovation, we were called. The Beverly Wiltshire took the mural down, gave it to the city of Beverly Hills for their new city hall. It was good for everyone. So it seems to be a win/win situation; there don't seem to be only the adverse and negative consequences, but there is the presence of positive consequences.

Senator KENNEDY. Let me ask a rather obvious question on which it would be useful for us to get a clear answer that is on the relative importance of these rights of attribution and integrity. Are they really needed? How much is the bill really needed?

Mr. VAN SANT. I don't know an artist that hasn't suffered from the loss of work at one stage or another in their careers. They have long careers, and some of our major works in California have been lost throughout the years. So we have welcomed this legislation tremendously.

Senator KENNEDY. On another area, did you have an opportunity to talk with anyone who worked on the renovation which destroyed your mural?

Mr. VAN SANT. Yes. My inquiries over several months were unfruitful. Interestingly enough, when the first breakthrough cameI sort of worked my way down through the hierarchy, down through the owners, the building management company that supervised the renovation, then the contractor, and finally I spoke to the job supervisor. That was the first time I learned about what happened to the mural. He said, "Boy, I sure remember being ordered to put a wall beam through that painting. I told my boss that

I didn't feel that that was really the right thing to do, that there was really something wrong with doing that." That was the first breakthrough in finding out what happened.

Senator KENNEDY. Well, it's a sad ending to the story, but again I think it does illustrate the importance of trying to enact legislation in this area.

I want to thank all of you very much. We won't burden you with many additional questions, but there may be some specific areas of interest. Thank you all for your support. We are going to do everything to get the legislation passed.

Ms. CAWLEY. Thank you, Senator.

Mr. VAN SANT. Thank you, Senator.

[Whereupon, at 12:21 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]

[blocks in formation]

I submit the written views of the Copyright Office on S. 1198,

the Visual Artists Rights bill. Since I did not testify at your hearing on
this bill, the Subcommittee staff suggested that comments could be
submitted for inclusion in the hearing record.

know.

If I can be of any assistance to the Subcommittee, please let me

Enclosure:

Statement on S. 1198

Sincerely,

Ralph an

Registe of Copyrights

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