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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 economis

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

rights are personal to the author and are intended to protect the personal.

ity and integrity of the author, not necessarily the work itself. Although

for most works, destruction rights and moral rights are distinct

one

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

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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.

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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 histori.

cal 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

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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

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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

a work of fine art capable of

remove

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 5987 (West's Anno. Cal. Codes Supp. 1989).

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Connecticut 3

The 1988 Connecticut law, also a preservation and moral rights

statute, contains a detailed definition of works of fine art, including

calligraphy, craft works, and photographs, provided they have a minimum

market value of $2500. Works made for hire are excluded from the definition

of works of fine art.

Under this Act, the artist may waive his or her

rights in writing. As amended in 1988, the connecticut Act provides a life

of-the-author plus fifty year duration for moral rights. The provisions on

removing art from buildings are similar to those in the California Act,

except that in Connecticut, the artist's reservation of rights must be

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Passed in 1984, the Massachusetts statute prohibits "the inten

tional commission of any physical de facement, mutilation, alteration, or

destruction of a work of fine art,"

The artist retains a right of attribu

tion and the right to disclaim authorship " for just and valid reason."

If a

work of fine art cannot be removed from a building without substantial

alteration, the prohibitions of the Act are suspended unless a written obligation signed by the owner of the building has been recorded. If the work is capable of being removed without mutilation, then the prohibitions of the Act apply unless the owner notifies the artist and provides the

artist with an opportunity for removal.

1988 Connecticut Acts, Section 284.

4

Mass. Gen. Law Chap. 231, Section 865 (West Supp. 1988).

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destruction and establishes moral rights for protected works. Much like the

California law, the Pennsylvania Act applies to works of recognized quality. In addition to special rules on removal of works of art from buildings, the Pennsylvania law excuses from liability for alteration or destruction those

owners who remove works of art in "emergency situations."

Conservation

activities that are not grossly negligent are also not actionable.

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Passed in 1986, Louisiana's Artists' Authorship Rights Act

protects visual or graphic works of recognized quality in any medium

reproduced in not more

than 300 copies.

Motion pictures, however, are

excluded, as are works prepared under contract for advertising and trade,

unless such contract provides otherwise.

Rights of attribution and

integrity are granted, but destruction is not covered, with the exception of

art on buildings. Rights in such works are subject to a special reservation, which is required also by several other state statutes. Alterations that occur as a result of conservation efforts are not actionable unless the

alteration is the result of gross negligence.

Louisiana's rights attach

when the work is publicly displayed.

5

73 P.S. Ch. 31, Sec. 2101 ff.

6

Louisiana Statutes Ann. Ch. 34, Sec. 2151 et seq. (West 1986).

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