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Senator GRASSLEY. Even if you put his future on the chopping block?

Mr. DAMICH. Yes. I think what it comes down to in economic analysis is simply a question of marginality. In other words, if a patron would insist that the artist waive his moral rights in order to purchase a particular piece, it may be a disincentive for that artist not to produce, but I think you would find that that would really be on the margin and would not affect the artistic productivity in general in the United States.

Senator GRASSLEY. Well, it just seems to me that the early life of an artist is a very tough life. I'm not an expert on it, but that's the perception I have. I just think it's very tough.

Mr. DAMICH. That's true, Senator.

Senator GRASSLEY. And to some extent we are standing in the way. Any comments from either of

you

two? Mr. GORMAN. Although I ordinarily believe that the marketplace ought to operate and that there ought to be a determination of rights and duties through negotiated arrangements, I do believe that if moral rights for artists are limited to rights against the mutilation or distortion of the unique physical object that that person has created— first of all, it is highly unlikely that a purchaser is going to want to do that. And second of all, it seems to me appropriate in those circumstances-a very narrow range of dysfunctional activity by a purchaser-it seems to me that is the one area where it is possible to argue that nonwaivability ought to prevail.

I don't see young artists losing out much financially if they were forbidden the right to transfer this power to another person who is not likely to want to use it.

Mr. BROWN. Senator, the fact is that if a young artist is given an opportunity to do a mural, he is going to be willing to give up whatever rights are provided by any bill that Congress would enact for the opportunity to have that mural appear. And if the person commissioning the mural says "I may want to change it later; I may want to add something by a famous artist; I may want to change the color of the statue; I may not want to have the metal be rusting, and I may want to have it painted or repainted, and I want you to sign away your right,” he's going to sign it.

It seems to me that making it inalienable is not necessarily in his interest. It certainly is nothing any of us are going to support, to argue that someone should be allowed to mutilate a work. As Í say, I think the courts may well take a dim view of any kind of mutilation if there is any kind of implied contract that can be found in a situation like that. But there are all kinds of changes which may properly be the subject of contracts, it seems to me, that are unpredictable in advance. I don't know that it's going to have an economic effect on the production of the young artist or his welfare, but I don't know that it's going to do him a lot of good, either.

Senator GRASSLEY. I'd like to have you look at how this provision of not being able to waive rights operates in conjunction with the work for hire exemption. If an artist is commissioned to do a piece of art, then wouldn't the person who hired the artist have full rights in the artwork and wouldn't the artist be precluded from asserting moral rights?

Mr. DAMICH. According to the Kennedy bill there is an exclusion from work for hire, so that moral rights would not apply to either party—that is, the commissioning party or the employer, or to the employee or the commissioned party.

Senator GRASSLEY. So you're saying that there is no problem?
Mr. DAMICH. There is no problem in the Kennedy bill, yes.

One of my criticisms of the Kennedy bill is that I think the work for hire context should be looked at a little more closely to see whether moral rights in fact can fit into that context as well, but I think some study has to be done to see if that is the case.

Senator GRASSLEY. This will be my last question.

Last year we studied the Berne Copyright Treaty, and we heard from many witnesses about the extensive protection that American law already affords artists. Many of these experts on that legislation told us that Federal and State laws concerning tort, contracts, trademarks, just to name a few, give artists ample legal rights and remedies.

So why do we now find ourselves in the position of considering the addition of further protections if we already have the equivalence of moral rights? Has anything changed or happened in the last year to warrant this major change? I suppose that if you agree with that first premise, then you would say that nothing has changed in the past year.

Mr. DAMICH. Like a law professor, the response would be a distinction. I was involved in the hearings in the House on the Berne Convention, and I think that it has to be made clear that the point of many of the experts-and I did not agree with this, although I did agree in principle—the point regarding joining the Berne Convention was, given the fact of the degree of moral rights protection in the other countries of the Berne Union, and given the fact that the Director of the World Intellectual Property Organization was not going to oppose U.S. entry, that it was OK to join the Berne Convention on that basis. But I think that if pressed, the experts would say that American law in fact does not reach the level of protection of the language of article 6bis of the treaty.

So it's one of those things that, "Yes, we probably could join the club, but we have to admit that we don't really fulfill all of its rules." That's my position.

Mr. Brown. In fact, very few countries do. That's another point that was made in the hearings.

Senator DECONCINI (resuming the chair). Thank you, Senator Grassley.

Mr. Damich, you answered a question of mine. In your statement you make the argument expressly, which was rejected by this committee and the Congress as a whole, namely, that express moral rights in our copyright law were required by Berne, and I think you have cleared that up. You feel we are in compliance with Berne by passing an implementing statute, but we could be more in compliance if we had addressed moral rights.

Is that a fair summation?

Mr. Damich. It's better to say that we could join Berne and point to the traces of moral rights protection that we have as evidence of our good faith, but I would emphasize the fact that in my opinion, U.S. law does not comply with the requirements of article Sbis, which is the moral rights provision. I think it's scandalous, as a matter of fact

Senator DECONCINI. Then you're saying that in your opinion we are not part of the Berne Convention? We have not adopted the legislation necessary to be in compliance? What we did last year really doesn't put us in any better position than if we passed nothing?

Mr. DAMICH. As far as the actual law is concerned in the United States, there has been no change, that's correct.

Senator DECONCINI. And consequently, we are in no better position regarding the Berne Convention than if we had passed no laws?

Mr. DAMICH. That's correct, regarding the Berne Convention. I think, though, with regard to moral rights, the joining of the Berne Convention was the first official recognition of acceptance of the principle of moral rights that I am aware of, other than the Gilliam case.

Senator DECONCINI. So we joined it but we didn't pass the implementing statutes to be subject to it? I'm trying to understand how we can be partly there but not all the way.

Mr. DAMICH. Senator, I guess that's a question to ask politicians rather than academics.

I think that it was basically a political decision, that the other countries of the Berne Union wanted the United States to join, and that they would be willing to accept these traces as sufficient compliance to join. But I think if you asked them now, they might say they would appreciate very much, as Britain did, if we would change our law to come into more full compliance with article 6bis.

Senator DECONCINI. Very good. So what you're saying is that we're in, but they would like us to be more pure about it and address moral rights in passed legislation? Mr. DAMICH. It's fair to say that, yes, sir. Senator DECONCINI. Fine. Also you say in your statement that “moral rights will help protect our cultural heritage," and then you don't give any explanation. Can you give me just a quick explanation of how that is going to be?

Mr. DAMICH. Yes. There is an indirect correlation between preservation of our cultural heritage and moral rights. Moral rights are artist's rights, and therefore it is up to the artist to assert them or not. So in that sense it is dependent on his or her activity. It's not as if we were talking about a landmark statute, for example, where another Government entity might come in and say “No, you can't change that work of art."

But although it is indirect, I think it is a very real benefit of moral rights protection because I would assume that in most cases the artist would want the integrity of his work protected, and therefore would sue if he had the cause of action. Senator DECONCINI. Mr. Brown, in your statement you indicate that the successful creation and distribution and communication of artistic material is "dependent on economic viability or optimum business arrangement.” But isn't much art created just for the purpose of creating art and no other reason? And don't many artists create their work not for any business reason, but in order to fulfill their artistic or emotional vision and the experience that they feel within?

Then I would ask you whether it is proper to apply business and economic principles to what, in some cases at least, and perhaps many cases, are nonbusiness, noneconomic endeavors? Are artists really businessmen or are they both artists and businessmen? How do you resolve the two? I understand where you come down on it, but I would like your explanation.

Mr. BROWN. Well, most artists who create things for their own pleasure or to fulfill their own sense of destiny and who have no business purpose or objective don't transfer ownership of their work and don't assign copyrights or enter into arrangements for the sale of their works, so there isn't any problem. They are the owners; they have it; if they give it to a friend, they don't necessarily transfer the ownership or the copyright. If they let a museum show it, there isn't a transfer of ownership or copyright. They're not in the business, so you have a nonproblem.

There is a business, however, and a considerable one in which artists are engaged, and the business involves not just the production of a work but, as Senator Kennedy's bill recognizes, reproduction of that work, distribution, sale, resale, auctions which frequently appear on the front page of the New York Times—those are all arrangements downstream from the creation that are subject to the making of contractual arrangements. Indeed, there are contractual arrangements in almost all these cases.

The least restrictive is the single work of art being sold in a gallery because usually that is put there only on consignment and there is no transfer until somebody buys the work and takes it home or puts it in a museum or whatever he does with it.

I hope that addresses your question.
Senator DECONCINI. Mr. Gorman, do you want to comment?

Mr. GORMAN. The question you raise is also at the root of our copyright system. It might be argued that economic protection through copyright is not necessary for artists and composers be

they are moved by their own internal spirit to paint and to compose. But the truth of the matter is that our society is enriched when these people do not simply paint and compose, but when their works are disseminated to the public. The process of investment in the arts, distribution of the arts to the public, is what we feel we need an incentive for through our copyright law.

I am somewhat concerned—this is a reiteration of my basic point—that too-aggressive protection of moral rights in fields other than the visual arts, such as book publishing, magazine publishing, film, television, and the like, may unwantedly serve as an inhibition upon the development and dissemination of works to the public by virtue of the capacity of any one of a host of individuals to interpose his aesthetic values to prevent the exploitation and marketing and distribution of the work.

Senator DECONCINI. Thank you.
Senator Kennedy, do you have any other questions?

Senator KENNEDY. Just the last point. The way this legislation is written, of course, is that the individual artist doesn't necessarily have to bring any cause of action if there is change to their painting unless they feel there is sufficient reason from their own point of view as an artist.

There are those who are concerned that if we pass this legislation, if there is any kind of alteration or change, that we're going to subject people downstream to limitless number of cases. I think this concern has been well addressed considering the fact that we're not giving the Justice Department the power to sue, as we do in civil rights cases; it is only given to the individual, and it's up to the individual to decide whether he or she feels sufficiently morally concerned or outraged to move ahead and take that action. The reason the rights are created is the recognition that there is something of the individual that is ongoing and continuing which is a part of that work of art.

It seems to me that if we look at it in that way, then there is ample justification for that right. If we're looking at it as just another pair of shoes or something, we're never going to be able to deal with it.

Mr. DAMICH. I agree with you, Senator Kennedy. I think that goes to the consent point that I was trying to make, also. You said that it is up to the artist whether or not he would even bring the suit, and I think that is another way of expressing that the artist can consent.

The question, though, is whether or not the artist can withdraw his consent. I think that the artist should be able to withdraw his consent up to the point where the action is taken, but I don't think it is proper for him to say "Yes, you can change that on my mural," then when the owner of the mural has made the change, for him to come back and say “Oh, I didn't mean it that way.” But that is to be distinguished from a situation where the mural is created at the very beginning, as Mr. Brown was pointing out, and the owner of the would-be mural says "I want you to waive your rights now for all time so that I can do whatever I want with this." I think an artist should not be contractually held to that kind of thing.

Senator KENNEDY. Very good.

Senator DECONCINI. Thank you very much, gentlemen. It has been very interesting and very helpful.

We will now have our final panelists: Ms. Linda Cawley, on behalf of Peter H. Karlen, a practicing attorney; Mr. Tom Van Sant, an artist from Santa Monica; and Mr. Marc Wilson, director of the Nelson Atkins Museum in Kansas City. I am advised that Mr. Karlen is not here because of an illness in his family.

We will start with you, Ms. Cawley. If you will summarize your statements in 5 minutes or less, we will put the full statements in the record.

You may proceed.

STATEMENT OF LINDA CAWLEY, ON BEHALF OF PETER H.

KARLEN, ATTORNEY AT LAW, LA JOLLA, CA Ms. Cawley. Mr. Chairman, my name is Linda Cawley and I am an associate of Peter H. Karlen of La Jolla, CA. I apologize on

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