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Senator DECONCINI. Thank you, Senator Hatch.

Our first witness this morning was going to be Congressman Edward Markey. He cannot be here because of conflicting schedules, but his statement will appear in the record as if he presented it.

The prepared statement of Mr. Markey follows:]

Honorable Edward J. Markey
Statement before the Senate Subcommittee on Patents,

Copyrights, and Trademarks

June 20, 1989

Thank you, Mr. Chairman, and members of the Subcommittee, for providing me the opportunity to testify here today. I have joined with my colleague, the Honorable Robert Kastenmeier, in introducing legislation which is similar to that introduced by Senator's Kennedy and Kasten. That legislation seeks to provide needed protection for visual artists. s. 1198, like the House bill, would provide American artists with the copyright protection they deserve. Artists in this country play a very important role in capturing the essence of our culture and recording it for future generations. It is often through art that we are able to see truths, both beautiful and ugly. It is paramount to the integrity of our culture that we preserve the integrity of our artworks as expressions of the creativity of the artist. John Ruskin, a famous historian and philosopher once said, "All great art is the work of the whole living creature, body and soul, and chiefly of the soul." It's important to realize the vulnerability of an artist who has just completed a work. I'll tell you one Boston artist's story. Unlike and author with a good concept, she has not received an advance from a potential patron to pay for easels, paint, and studio space during the production of the work. And, like most artists in this country, she has to hold down another job to support herself. Imagine her horror when she sees her own abstract oil painting reproduced on an album cover as she walks by a downtown record store! Under a Massachusetts arts protection law, she has the power to bring a suit, but in any state where there is no statute protecting visual works from this type of abuse, she would be absolutely out of luck. Currently, there are nine states which offer protections for works of art. If she were an author or a songwriter on the other hand, federal copyright laws would protect her work from being commercially exploited without crediting her as the author. Our legislation would provide visual artists with protection for their works which has been sorely lacking in u.s. copyright law. Unlike the works of literary or performing artists, artworks created by visual artists are treated more as physical objects than as expressions of the artistic creativity of their authors.

The bill would recognize the artist's interest in maintaining the integrity of his or her work. The artist would be given the right to claim authorship of his or her work, to disclaim

authorship of a distorted or mutilated work, and to bring a civil copyright claim for willful destruction or mutilation of his or her work. I would like to stress that we have gone to extreme lengths to very narrowly define the works of art that will be covered. While we are sensitive to the concerns of those industries that wish to maintain their rights of editing and reproduction, I must take this opportunity to emphasize that this legislation covers only a very select group of artists whose works have been allowed to fall through the existing gaps in our copyright law.

I would also like to point out that the law would be applicable only to works created on or after the effective date of the act, or to works created but not published before the effective date. In this way, we avoid diminishing the value of works of art which a person has already purchased.

Finally, we have included in both our bills a provision calling for a study on the feasibility of implementing a resale royalty for certain works of art as well as other possible means of promoting opportunities for artists to share in some of the wealth as the value of that work increases. If we are to be serious about promoting art in this country, we need to recognize that with all the money being made in the art world, very little of it gets back to the artist. Once again, it is a question of acknowledging the lasting relationship between the artist and his or her creation. This relationship is not severed the first time the work is sold. For instance, I probably don't have to remind everyone of the atrocity which occurred with Picasso's "Trois Femmes" when two Australian entreprenuers chopped up that great masterpiece into 500 "original Picasso pieces." The absence of legal protection for the artist paved the way for this great work to be brutally mutilated and then allowed Picasso's name to be exploited for the financial gain of the two profiteers.

I believe that the Visual Artists' Rights Act would encourage and promote the arts in our society. American culture thrives on the artistic expression of talented individuals, and American artists deserve no less than the protections offered in this legislation. I want to commend you for addressing this issue today. The House plans to hold a similar hearing later this summer, and we hope the legislation will move quickly. Thank you.

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 one of-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

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