SUMMARY

The principal virtues of the bill are that it: (1) creates through Section 301 of the Copyright Act, uniform law throughout the United States where there is now diversity, a uniformity which will promote the transfer of artworks through interstate commerce; (2) promotes "progress in the arts" by preserving for posterity the physical integrity and correct attribution of existing works, all in the interest of preserving the cultural heritage; (3) effectuates the copyright laws by ensuring that artist-copyright owners can exercise their rights under copyrights by preserving unique originals; (4) protects artists' reputations, which are their principal assets; and (5) meets an existing need since for visual artists the rights confirmed by this legislation are violated more than traditional copyright rights.

The bill is narrowly drafted to protect visual artists and their works. Except that users cannot gratuitously mis-credit, mutilate or destroy works of visual art, this legislation should have a minimal effect on user groups. It will not significantly impede transfer or sale of works in interstate or foreign commerce. After all, similar laws in New York, California, Massachusetts, other states and in Europe have not had that effect.

In fact, the bill is SO restricted that the artists' rights should be broadened in certain respects via amendment. Coverage should be extended to all works of "fine art" rather than confined to paintings, sculptures, drawings, and prints; the fair use defense, at least envisioned under Section 107, should not necessarily be applied to these rights; and the owner of the rights should not necessarily have to prove prejudice to honor or reputation, although this prejudice should be considered for purposes of awarding damages.

The bill does not pose serious problems regarding privacy, either for artists or user groups, nor is it likely to create a flood of litigation because, as indicated by testimony supporting implementation of the Berne Convention, many of these rights already exist from state to state under unfair competition, privacy, and defamation laws. The only possible cause of increased litigation would be the fair use defense if allowed to apply to these rights.

The proposed law does not pose di.ficulties for the courts. concerned about adjudicating "recognized stature" have nothing to Most defendants, either for practical or legal reasons, issue, and the typical artist pursuing her rights has and creates clearly protectible works.

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worry about. never seriously raise the an established reputation

I.
INTRODUCTION

Mr. Chairman, my name is Peter H. Karlen, and I am a practicing attorney in Southern California in the areas of art, literary, and entertainment law, and a contributing writer for Artweek and other arts publications. numerous articles, both trade and academic, on art law and the rights and

I have authored

liabilities of artists, dealers, art experts, and other persons in the art trade. My experience also includes years of teaching courses on law and the arts at

law schools in both this country and the United Kingdom.

probably

Our law offices have

handled more artists' rights cases under

the California Art

Preservation Act (Civil Code Section 987) than any other law 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 that you may have about how the proposed legislation and statutes like it work every day in law offices and courtrooms around the country.

I also hope to convince you, Mr. Chairman and members of the committee, that legislation like the Kennedy bill currently protects artists in a number of states, without causing a rash of litigation or proving too complex for the courts to deal with. Finally, I 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.

II.

GENERAL COMMENTS IN SUPPORT OF BILL

A.

OVERALL PURPOSE AND BENEFIT OF NEW LAWS

There is a critical need to protect visual artists. Unlike composers and writers whose works exist in multiples, the creator of a unique original depends upon the continued existence of the original, not only to exercise the copyright but to protect and enhance reputation.

It

Fine artists live and breathe reputation. The continued physical existence, especially of a publicly displayed work, greatly enhances the artist's reputation and provides a "living portfolio" of the artist's work for all to see. For similar reasons, the artist's right to claim credit preserves the artist's reputation. does no good to preserve an artist's work if the artist can't claim credit for it. Similar considerations apply to the right to disclaim credit, another important artist's right. (See Karlen, "Artists' Rights Today," 4 California Lawyer, No. 3, 22, 25, 54 (1984))

What most commentators forget is that "moral rights" actually effectuate artists' economic rights, including copyrights. Unless the work is created for hire or the artist transfers the copyright under Section 204, the artist remains the copyright owner. However, it does little good to remain the copyright owner if the unique original copy has been mutilated or destroyed by other persons with impunity and can no longer be properly reproduced.

In many cases we have handled, the most critical injury to the artist has been the loss of copyright rights because of destruction ог mutilation of original artwork. (But see Karlen, "Moral Rights in California," 19 San Diego Law Review, 675, 712, 231 (1982)) artist had created well over one

For example, in the Tompkins ** case, the hundred sculptural works which had been

carelessly lost or destroyed at a museum where they had been deposited for safekeeping and display. The critical injury to the artist was that the sculptures, mostly models (which are not covered under this bill), effectively had their copyrights destroyed. The artist had planned to commercially exploit the sculptural works through public display, reproduction, and mass distribution.

Our practical experience has been that visual artists are not SO much concerned with traditional copyright protection as they are with enforcing the

For each case of

rights mentioned at Article 6bis of the Berne Convention. copyright infringement involving a work of fine art, we see five cases involving potential violations of the California Art Preservation Act and other similar laws. (Of course, the reverse is true for commercial artists, whose principal complaint is copyright infringement.) It is usually not the fine artist whose

work is reproduced on mugs, T-shirts, and other items, but rather the commercial artist, although there are exceptions to this proposition with artists who are peripherally fine artists.

Perhaps the most important reason for extending the copyright legislation is to follow the original constitutional authorization for such legislation at Article 1, Section 8, Clause 8 of the Constitution, which allows Congress to enact legislation "To Promote the Progress of Science and useful Arts." After all, this legislation not only serves the private interests of fine artists but also the public good. As enunciated in the preamble to the California statute written by state senator Alan Sieroty, one purpose is to protect the "public interest in preserving the integrity of cultural and artistic creations."

A society which adopts the motto "ars brevis, vita longa" rather than "ars longa, vita brevis," does not respect its cultural heritage.

In short, artist's moral rights as provided under this bill civilization.

are a mark of