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II

101st CONGRESS

1st SESSION

S. 1198

To amend title 17, United States Code, to provide certain rights of attribution and

integrity to authors of works of visual art.

IN THE SENATE OF THE UNITED STATES

JUNE 16 (legislative day, JANUARY 3), 1989 Mr. KENNEDY (for himself and Mr. Kasten) introduced the following bill; which

was read twice and referred to the Committee on the Judiciary

A BILL

To amend title 17, United States Code, to provide certain rights

of attribution and integrity to authors of works of visual art.

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Be it enacted by the Senate and House of Representa

2 tives of the United States of America in Congress assembled,

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This Act may be cited as the “Visual Artists Rights Act

5 of 1989".

6 SEC. 2. WORK OF VISUAL ART DEFINED.

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Section 101 of title 17, United States Code, is amended

8 by inserting after the paragraph defining "widow" the

9 following:

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A 'work of visual art' is a painting, drawing,

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print, sculpture, or still photographic image produced for exhibition purposes only, existing in a single copy, in a limited edition of 200 copies or fewer, or, in the case of a sculpture, in multiple cast sculptures of 200

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or fewer. A work of visual art does not include

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cal drawing, diagram, model, applied art, motion

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picture or other audio visual work, book, maga

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zine, periodical, or similar publication;

“(B) any merchandising item or advertising, promotional, descriptive, covering, or packaging

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material or container;

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"(C) any portion or part of any item described in subparagraph (A) or (B);

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“(3) any work made for hire;

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“(4) any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in paragraph (1), (2),

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1 SEC. 3. RIGHTS OF ATTRIBUTION AND INTEGRITY.

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(a) RIGHTS OF ATTRIBUTION AND INTEGRITY.

3 Chapter 1 of title 17, United States Code, is amended by 4 inserting after section 106 the following new section:

5 "$ 106A. Rights of certain authors to attribution and

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"(a) RIGHTS OF ATTRIBUTION AND INTEGRITY.-Sub

8 ject to section 107 and independent of the exclusive rights

9 provided in section 106, the author of a work of visual art

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the author of any work of visual art which he or

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“(2) shall have the right to prevent the use of his

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or her name as the author of the work of visual art in

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the event of a distortion, mutilation, or other modifica

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tion of the work as described in paragraph (3); and

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“(3) subject to the limitations set forth in section

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prejudicial to his or her honor or reputation, and

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any intentional or grossly negligent distortion, mutilation, or modification of that work is a viola

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tion of that right, and

OS 119M IS

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"(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of

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that right.

5 In determining whether a work is of recognized stature, a 6 court or other trier of fact may take into account the opinions 7 of artists, art dealers, collectors of fine art, citors of art 8 museums, conservators of recognized stature, and other per

9 sons involved with the creation, appreciation, history, or

10 marketing of works of recognized stature. Evidence of com11 mercial exploitation of a work as a whole, or of particular

12 copies, does not preclude a finding that the work is a work of 13 recognized stature.

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"(b) SCOPE AND EXERCISE OF RIGHTS. The author

15 of a work of visual art has the rights conferred by subsection 16 (a), whether or not the author is the copyright owner, and 17 whether or not the work qualifies for protection under section 18 104. Where the author is not the copyright owner, only the 19 author shall have the right during his or her lifetime to exer20 cise the rights set forth in subsection (a). 21 "(c) EXCEPTIONS.—(1) The modification of a work of

22 visual art which is a result of the passage of time or the

23 inherent nature of the materials is not a destruction, distor

24 tion, mutilation, or other modification described in subsection

S 1195 IS

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1 (a)(3) unless the modification was the result of gross negli

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(2) The modification of a work of visual art which is

4 the result of conservation is not a destruction, distortion, mu

5 tilation, or other modification described in subsection (a)(3)

6 unless the modification is caused by gross negligence.

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"d) DURATION OF RIGHTS.—(1) With respect to

8 works of visual art created on or after the effective date set

9 forth in section 10(a) of the Visual Artists Rights Act of 10 1989, the rights conferred by subsection (a) shall endure for a

11 term consisting of the life of the author and fifty years after

12 the author's death.

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“(2) With respect to works of visual art created before

14 the effective date set forth in section 10(a) of the Visual Art

15 ists Rights Act of 1989, but not published before such effec16 tive date, the rights conferred by subsection (a) shall be coex

17 tensive with, and shall expire at the same time as, the rights

18 conferred by section 106.

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“(3) All terms of the rights conferred by subsection (a)

20 run to the end of the calendar year in which they would

21 otherwise expire.

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“(e) TRANSFER AND WAIVER.—(1) Except as provided

23 in paragraph (2), the rights conferred by subsection (a) may

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