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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 lifeof-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 recorded in the state real property records.

Massachusetts 4

Passed in 1984, the Massachusetts statute prohibits "the intentional commission of any physical defacement, mutilation, alteration, or destruction of a work of fine art." The artist retains a right of attribution 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.

4

3

1988 Connecticut Acts, Section 284.

Mass. Gen. Law Chap. 231, Section 86S (West Supp. 1988).

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Pennsylvania 5

The 1986 Pennsylvania Fine Arts Preservation Act prohibits 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.

2. Artists' Rights Statutes.

Louisiana 6

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.

when the work is publicly displayed.

5

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

Louisiana's rights attach

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

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Maine 7

In 1985, Maine enacted moral rights for artists of visual or graphic works without restriction as to quality. Similar to the Louisiana Act, Maine attaches the rights to public display within the state, and excuses conservation activities except for gross negligence. The artist can claim authorship or disclaim it "for just and valid reasons," which includes modification likely to cause damage to the author's reputation. No special requirements are established for removal of works of art from buildings.

New Jersey 8

The New Jersey Artists Right Act of 1986 provides protection like that of Maine. It excludes motion pictures and makes no special provisions for removal of art from buildings.

New York 9

In 1984, New York passed its New York Artists' Authorship Rights Act. The statute prohibits the display of an "altered, defaced, mutilated, or modified form" of a work of fine art which damages the artist's reputation. There is no explicit prohibition against destroying a work, although destruction in the context of damaging an artist's reputation might fall within the Act. The artist additionally has a right of attribution, and the right to disclaim authorship for good cause. Conservation does not

7 Maine Revised Statutes Ann., Title 27, Section 303 (West Supp. 1988-89).

8

New Jersey Session Law, Chapter 97 (West 1986).

9 N. Y. Arts & Cultural Affairs Law, Section 14.03 (McKinney's Consolidated Laws Anno., West 1987).

9

constitute alteration, defacement, mutilation, or modification unless the conservation is done negligently.

Rhode Island 10

In 1987, Rhode Island passed attribution and integrity rights legislation for works of fine art that are "knowingly publicly displayed in a place accessible to the public, published or reproduced" in that state. Its definition of works of fine art, identical to that of Maine, New York, and New Jersey, is not limited to works of recognized quality, since this term is primarily used in preservation statutes. "Alteration...of a work... resulting from the passage of time or the inherent nature of the materials," in the absence of gross negligence is not a violation of the statute.

New Mexico's Art in Public Buildings law is an example of extensive rights in a very limited area. The Act protects against alteration and destruction and provides attribution rights for works displayed in public buildings. Protection is thus limited to works that are publicly displayed by the state. The Act includes the special provisions for works of art that are incorporated in buildings. If the artist is deceased, the state attorney general is authorized to assert moral rights on behalf of the author.

10 Bus. & Prof., Ch. 566, Secs. 5-62-2 through 5-62-6. (R.I. Gen. Laws, Michie's 1987).

11. New Mexico Stat. Ann., Section 13-4B-1 et seq. (Lexis 1989).

We do not have abundant moral rights case law in the United States, although some cases deal with rights that are considered equivalent to the rights of attribution and integrity. These cases bear out the conclusion that the courts, by and large, look to the intent of the contract between the disputing parties to determine the rights of attribution and integrity.

In an early case, Clemens v. Press Publishing Company, 67 Misc. 183, 122 N.Y. Supp. 206 (Sup. Ct. 1910), William Clemens sold his publishing rights in a manuscript which bore his name. Although the galleys had the author's name on them, the publisher refused to credit the author on the copy, stating that it would only publish the work anonymously. In the resulting suit, the court found that there had indeed been a contract to credit the author in the published book:

"Even the matter of fact attitude of the law
does not require us to consider the sale of
the rights to a literary production in the
same way that we would consider a barrel of
pork."

While this case is often quoted as demonstrating the presence of

Thus,

the right of attribution in American law, it is important to note that the court's holding was based on what it thought the parties agreed to. because third parties are not necessarily bound to observe the contractual provisions of others, the right of attribution exemplified here seems less

than absolute.

Under the contract theory, the affirmative obligation to include an author's designation rather than refrain from false designation is not