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pose 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 because 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

behalf of Mr. Karlen for his absence today, but Mr. Karlen's father is seriously ill and he is scheduled for emergency surgery.

I practice with Mr. Karlen and have been involved in all of the artists' rights cases Mr. Karlen has handled during the time I have been with his firm. With your permission, Mr. Chairman, I would like to submit Mr. Karlen's written testimony for the record. Senator DECONCINI. Without objection.

Ms. CAWLEY. Thank you.

Our firm has probably handled more artists' rights cases under the California Art Preservation Act than any other firm. As a practitioner familiar with artists' rights litigation, I am grateful for the opportunity to testify in support of the Visual Artists Rights Act of 1989. I commend you for holding this hearing on this important subject and hope that I can answer any questions you may have. I also hope to demonstrate the need for this legislation by relating to you some of the experiences of our clients, who have seen their works of art mutilated and destroyed.

Finally, I also hope to convince you, Mr. Chairman and members of the committee, that legislation similar to S. 1198 currently protects artists in nine States without causing a rash of litigation or proving too complex for the courts.

First, there is a critical need to protect visual artists. Unlike composers, writers, film directors, and computer programmers, whose works exist in multiples, the creator of a unique original depends upon the continued existence of the original to protect and enhance his reputation. Fine artists live and breathe reputation.

The threat of mutilation, destruction, or distortion of works of fine art is a real threat which not only affects the reputation of artists but also threatens the loss of our cultural heritage. I would like to give you a few examples of some of the cases we have handled and observed since enactment of the California statute in 1980.

Last year a development company threatened to tear down several historic Mexican-American murals. As in your State of Arizona, Mr. Chairman, Mexican-American art is a vital part of the culture of all western States, especially in California, and many residents in the area protested the destruction of the murals. These early 1920 murals, which depicted Mexican-American life in the Southwest in the 1920's, are typical of murals found throughout the region. Thanks to the California Art Preservation Act, the company made the effort to determine whether the murals were removable. Fortunately, it was discovered that there is a new technique which allows murals to be removed from walls without destroying or harming the art work. The murals were saved.

In another case Monette Kupiec, a regional artist, saw her most notable work-a widely regarded mural in the Hotel Del Coronado-wallpapered over. The mural depicted life at the hotel in 1904. It was displayed on the wall of the hotel's Grande Hall, where thousands of guests enjoyed the painting each year.

As you and I know, Mr. Chairman, the Southwest is rich in history and culture. For over 10 years Kupiec's mural conveyed this sense of history until it mysteriously disappeared. The artist brought suit under the California statute and learned that her work lay beneath a layer of glue and wallpaper, and had thus been

destroyed. An important statement of our heritage was lost. The artist collected damages under the California statute, but equally important, the case put all Californians on notice that such destruction of art is against the law.

These examples are typical of the injury to artists which has been occurring in California and across the country for years. There is a real need for the Visual Artists Rights Act-not only to protect the work and reputation of artists but, in the words of the California Preservation Act, to protect "the public interest in preserving the integrity of cultural and artistic creations."

Second, S. 1198 is limited and will not have any harmful effects on user groups, such as the publishing trade and entertainment industry. The principal effect of S. 1198 will be on those who believe that they have the right to destroy, alter, or mutilate a work of art or deprive an artist of credit.

Third, the visual artists rights bill is not revolutionary but evolutionary, and draws on the experience of the States. Our experience in California and the experience in other States demonstrate that artists' rights statutes do not cause increased litigation and are not too complex for the courts to handle.

Fourth, the Visual Artists Rights Act correctly creates a national, uniform standard to protect artists and their work. Under a Federal statute artists, collectors, and all those involved will know their rights and obligations no matter where they buy or sell a work of art.

Uniform legislation is necessary and appropriate. An artist shipping works in interstate commerce should not have to worry about any conflict in State laws.

Finally, Mr. Chairman, there are some aspects of the bill with which we are not in total agreement.

First, for a number of years we have advocated expanding the coverage of artists' rights statutes. The problem is that many works of fine art simply cannot be categorized as paintings, sculptures, drawings, prints, or photographs, such as collages or mosaics. Second, we do not support the full inclusion of a fair use defense as applied to artists' rights, but rather support limiting the application of the fair use defense to cases where the user needs to repair or restore the work.

In conclusion, as an art law practitioner I support the Visual Artists Rights Act. The bill is narrowly drafted legislation designed to protect artists and promote art preservation while minimizing the impact on user groups. If anything, the drafters of the bill have leaned over backwards to accommodate user groups by restricting the scope of the subject matter covered and by imposing the requirements of recognized stature and prejudice to honor or reputation, and allowing the fair use defense.

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

28-054-90-4

STATEMENT OF PETER H. KARLEN

ATTORNEY AT LAW

La Jolla, California

Before

SENATE SUBCOMMITTEE ON PATENTS, COPYRIGHTS, AND TRADEMARKS

HEARING ON S. 1198

THE VISUAL ARTISTS' RIGHTS ACT OF 1989

June 20, 1989

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