Senator DECONCINI. We will now move to the first panel. If they would come forward, please: Mr. Edward Damich, professor of law, George Mason University; Mr. Robert Gorman, Kenneth W. Gemmill Professor of Law at the University of Pennsylvania; and Mr. Jack Brown, a distinguished lawyer from Phoenix in the law firm of Brown & Bain.

Mr. Damich, we will begin with you, sir. If you would summarize your statement in 5 minutes so that we may have time to entertain some questions, your full statement will appear in the record.

STATEMENT OF EDWARD DAMICH, PROFESSOR OF LAW, GEORGE MASON UNIVERSITY LAW SCHOOL, ARLINGTON, VA

Mr. DAMICH. Mr. Chairman, members of the committee, my name is Edward Damich. I am associate professor of law at George Mason University School of Law in Arlington, VA.

Before I begin my remarks I would like to express my thanks for this opportunity to appear before you today. The views that I express are my own; I am not acting as a paid advocate of any group.

I would also like to express my appreciation for the work that Senator Kennedy and his staff have done on behalf of national protection of the moral rights of authors. The subcommittee also is to be commended for recognizing the importance of this issue.

My oral testimony will be brief, but I would like my longer written testimony to be included in the record.

Senator DECONCINI. It will so be ordered.

Mr. DAMICH. Thank you, Senator.

In my oral testimony I would like to make a few basic points. There is a need for Federal legislation to protect the integrity of works of visual arts and to protect the right of the artist to be identified or not as the author of the work. Examples of indifference to objects as works of art are not hard to come by. The experience of Tom Van Sant will be related shortly.

The doctrine of the moral rights of authors is tailor-made to achieve this protection and it can serve as a frame of reference to test whether protection is adequate.

Moral rights derive from the theory that a work of art expresses the personality of its author; thus, the artist has the right to be identified as the personality expressed and to ensure that his personality is accurately expressed. This is a concept that American law has already accepted to some degree, as in the right to privacy, and it is a concept that the United States has accepted by signing the Berne Convention.

Protection of moral rights is especially urgent in the case of oneof-a-kind works of visual art where alterations can lead to total loss of the authenticity of the work.

Although there are areas of the Kennedy bill that have room for improvement in my view, in general it is a commendable basis for protection of the rights of visual artists.

Thank you.

[The prepared statement of Mr. Damich and responses to additional questions follow:]

Statement of Edward J. Damich

Associate Professor of Law, George Mason University

Submitted to

the Subcommittee on Patents, Copyrights, and Trademarks of the Committee on the Judiciary United States Senate

on the Visual Artists Rights Act of 1989 (S. 1198) June 20, 1989

SUMMARY

Federal moral rights protection is necessary in order to preserve the authenticity of the author's communication of his artistic vision to the public and to ensure that his vision will be identified as his. Federal moral rights protection is also necessary in order to fulfill the United States' obligations under the Berne Convention, which in article 6bis, contains a comprehensive moral rights provision. Although nine states have recognized moral rights to some systematic degree, there is no moral rights protection to speak of in the other states, and some of the state statutes do not provide comprehensive protection and they do not measure up to the requirements of Berne. Furthermore, they are constantly in danger of being preempted.

are

Despite the fact that there is little basis for concluding that moral rights protection exists in the United States, the principle on which it is based, viz., the protection of the personality, is well established in American law. The torts of violation of the right of privacy and defamation per se examples of causes of action that protect the plaintiff's interest in his "honor," an aspect of the right of personality. Thus, federal legislation to protect moral rights would not introduce a totally foreign concept.

Since there is nothing wrong in principle with achieving comprehensive moral rights protection incrementally, The Visual Artists Rights Act of 1989, S. 1198 (hereinafter Kennedy bill), is not objectionable for restricting protection to works of visual art. Its preemption provision, however, raises a serious concern in that more comprehensive state protection might be lost. Furthermore, although in general the Kennedy bill represents a viable scheme for protection of visual artists, it can be criticized for: (1) the exclusion of photographs of a limited edition of 200 or fewer; (2) the limitation of protection of the fidelity of reproductions to limited editions of 200 or fewer; (3) the seemingly knee-jerk exclusion of works made for hire; (4) the limitation of the right against destruction to works "of recognized stature;" (5) the exclusion of anonymity and pseudonymity from the right of attribution; and (6) the "bad fit" that results from applying the Copyright Act provisions for monetary damages to moral rights violations.

Mr. Chairman, members of the subcommittee, my name is Edward Damich. I am Associate Professor of Law at George Mason University School of Law, Arlington, Virginia. Before I begin my remarks I would like to express my thanks for this opportunity to appear before you today. The views that I express are my own; I am not acting as a paid advocate of any group.

I would also like to express my appreciation for the work that Senator Kennedy and his staff have done on behalf of national protection of the moral rights of authors. The subcommittee also is to be commended for recognizing the importance of this issue.

My testimony consists of three parts. In the first part, I identify the reasons for federal legislation to protect the moral rights of authors. In the second part, I relate the concept of moral rights to well-established concepts that already exist in American law. In the third part, I comment on the provisions of the Kennedy bill.

I. The Basis For Federal Protection of the Moral Rights of Visual Artists

The

Federal protection of the moral rights of visual artists is based on the recognition that works of visual art communicate an aspect of the artist's personality, viz., his creative vision. Just as a U.S. Senator might be at great pains to make sure that his remarks are accurately reported, so the visual artist feels that he is entitled to preserve the authenticity of his visual message. This personal aspect helps to define a work of art. shock and horror that seems so natural over the repainting and stabilizing of a Calder mobile or the destruction of Tom Van Sant's mural are entirely out of place over the changing of a light fixture or the repainting of a wall. The negative reaction is prompted by indifference to the object as a work of art. recognition of moral rights compels the owner of a material object to recognize that what he owns is a work of art, the communication of a unique personality.

The

Society also benefits from the protection of the artist's moral rights. If the arts are promoted by giving authors economic rights in their works, surely they are also promoted when authors are assured that their work will not be tampered with. As Judge Lumbard stated in Gilliam v. ABC, "[T]he economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law, cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent." Furthermore, moral rights will help protect our cultural heritage.

1538F.2d 14, 24 (2d Cir. 1976).

In addition to protecting the personal aspect of artistic creation, federal protection of moral rights can be based on our obligations under the Berne Convention for the Protection of Literary and Artistic Works which the United States adhered to March 1, 1989, Article 6bis of the Berne Convention provides for moral rights, and no amount of qualifying language3 can obscure the fact that this country has recognized moral rights in principle. Other common law countries have moved to fulfill their treaty obligations. The United Kingdom recently enacted comprehensive moral rights legislation in order to comply with the requirements of article 6bis.

Ideally, the goal of federal protection of moral rights should be comprehensive protection of the creative personality. Minimally, the United States should comply with the language of article 6bis.

II. Moral Rights And the Right of Personality

Protecting the moral rights of authors is not transplanting a foreign organ into the body of American law. It may be a transplant, but there is every reason to believe that it will not be rejected, because American law contains similar genes.

2" Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." World Intellectual Property Organization, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) (1978) [hereinafter WIPO Guide].

3" The provisions of the Berne Convention, the adherence of the United States thereto, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work, whether claimed under Federal, State, or the common law--(1) to claim authorship of the work; or (2) to object to any distortion, mutilation, or other modification of, or other derogatory action in raltion to, the work, that would prejudice the author's honor or reputation." § 3 Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988).

"Copyright, Designs and

[hereinafter British Act].

Patents Act, 1988, ch. 48