STATEMENT OF RALPH OMAN REGISTER OF COPYRIGHTS SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS "VISUAL ARTISTS RIGHTS" I am Ralph Oman, Register of Copyrights in the Library of Congress. At the suggestion of the Subcommittee staff, I am submitting my written views on S. 1198, the Visual Artists Rights Act of 1989, since I did not appear at the June 1989 hearing. S. 1198 would grant visual artists new federal rights under the Copyright Act: 1) a right to claim or disclaim authorship; 2) a right to prevent distortion, mutilation, and other modification of their work, and 3) under certain circumstances, a right to prevent destruction of a work that is incorporated in a building. Known in civil law countries as moral rights, or "droit moral," the first two of these rights have been granted in various forms to authors in many foreign countries, and to a limited extent, under various legal theories in the United States. Visual artists' rights have also been enacted in ten states. In the last Congress, I testified before this Subcommittee regarding moral rights proposals when United States adherence to the Berne Convention for the Protection of Literary and Artistic Works was under consideration. I urged that Congress should take a "minimalist" approach 2 regarding the legislative changes needed to conform our copyright law to the Berne Convention. Congress adopted the minimalist approach, and on March 1, 1989, the United States adhered to the 102-year old Berne Convention without enacting additional moral rights protection. Last year, the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice asked the Copyright Office to conduct a study relating to colorization, time compression, "panning and scanning" of films, and other technologies used in the alteration of motion pictures. On March 15, 1989, I submitted the colorization study. I believe the time is now ripe for a comprehensive examination of moral rights in all fields of authorship. Under the laws of most European countries, moral rights are included in the bundle of rights that comprise a copyright. These rights are considered to be personal rights generally that are different from the economic and proprietary aspects of copyright. The term "moral rights" does not have a precise definition; in general, it refers to those "non-economic" rights ensuring respect for the creator's personal vision, as embodied in a work of authorship. In general, there are four basic moral rights: 1) the right of publication; 2) the right to withdraw a work from public distribution; 3) the right to claim and be credited for authorship (known as the right of attribution); and 4) the right of respect for the work, known as the right of integrity.1 The principal moral rights are those of attribution and integrity. The right of attribution protects an author's ability 1 These are the most commonly recognized rights at the national level. It is important to note that the Berne Convention refers only to three and four above. - 3 to receive credit for his or her creations, or to disclaim authorship of works that he or she did not, in fact, create. The right of integrity permits an author to prevent changes in his or her work that are "injurious to his or her honor or reputation;" for example, changes that materially alter the author's vision, or inaccurately represent the author's views as expressed in a work. The theory of moral rights is that they result in a climate of artistic worth and honor that encourages the author in the arduous act of creation. S. 1198 would assemble in the federal copyright law rights that already exist in some measure, but are dispersed among the common law, disparate state laws, and federal unfair competition laws. The bill would also offer authors the opportunity to safeguard from destruction their works of art that have been incorporated in a building in the event the owner wishes to remove the work of art or demolish the building. Of the two core rights of attribution and integrity, the right of integrity is the more controversial. The integrity right generally means that an author, even if he or she has conveyed or licensed all economic rights to the work, retains the power to prevent, or at least object to, the distortion of the work by the transferee or licensee. An overbroad right against any material alteration could unnecessarily interfere with the ordinary marketing and distribution of works. Visual artists may have a special need for a right of integrity--that of preservation. If a unique work is distorted, mutilated, or altered, it may, for all practical purposes, have been destroyed. The general view of commentators is that out-right destruction of a work is not a moral rights violation. Moral 4 - one rights are personal to the author and are intended to protect the personality and integrity of the author, not necessarily the work itself. Although for most works, destruction rights and moral rights are distinct protecting the work (preservation) and the other protecting the author, for works such as single copy works of art, the two rights are not inconsistent. Moral rights protect the author's interest in being known to the public through the work as originally conceived. These rights may also serve the public interest especially with regard to works of art. - Finally, consideration of visual artists' rights is well under way in several states. Congress should weigh the benefits of creating a federal visual arts moral rights system in view of the growing number of state visual artists' rights laws. B. STATE LAWS State visual artists' rights laws have more than doubled during the last five years. States enacting moral rights for visual artists may be categorized as following one of three models: the preservation model, the moral rights model, or the public works model. States following the preservation model seek to protect artistic works from destruction in addition to providing for attribution and integrity rights. In other states, only the moral rights of paternity and integrity are provided. Destruction is not, strictly speaking, a violation of a moral right in those states, since where the work is destroyed, the moral right can be considered extinguished. Nothing is left to which the right can attach. - 5 The public works category is least related to copyright and more related to state police power. It seeks to protect works from vandalism. These laws safeguard state treasures, antiques, and other works of historical or other value as a normal exercise of keeping the peace. As a subset of moral rights laws, at least one state has restricted (perhaps experimentally) moral rights and preservation rights to works that are displayed in public buildings. In 1979, California became the first state to enact moral rights legislation. The California Art Preservation Act seeks to preserve works of fine art and protect the personality of the artist. The Act prohibits the intentional "defacement, mutilation, alteration, or destruction of a work of fine art." Where the alleged mutilation was associated with an effort to conserve a work of fine art, evidence of gross negligence is required. Additionally, the artist has a right of attribution, and "for just and valid reason," the right to "disclaim authorship of his or her work of fine art." The rights of attribution and integrity may be waived by written contract. Owners of buildings who wish to remove a work of fine art capable of removal without mutilation are subject to liability under the Act, unless they attempt to notify the artist of their intention and provide the artist with an opportunity to remove the work. Where the work is not capable of removal without mutilation or destruction, unless the artist has reserved moral rights in writing, they are deemed waived. 2 Cal. Civ. Code §987 (West's Anno. Cal. Codes Supp. 1989). |