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COPYRIGHT MORAL RIGHTS: VISUAL ARTISTS RIGHTS ACT (S. 1198) AND MORAL RIGHTS IN OTHER STILL VISUAL ART FORMS.

TUESDAY, JUNE 20, 1989

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS,

Washington, DC.

The committee met, pursuant to notice, at 10:30 a.m., in room 226, Dirksen Senate Office Building, Hon. Dennis DeConcini (chairman of the subcommittee) presiding.

Also present: Senators Kennedy, Hatch, and Grassley.

OPENING STATEMENT OF HON. DENNIS DeCONCINI,
A U.S. SENATOR FROM THE STATE OF ARIZONA

Senator DECONCINI. The Subcommittee on Patents, Copyrights and Trademarks begins this morning a series of hearings on moral rights in the copyright law. The term "moral rights" refers to those inherent rights of artists, authors, and other creators of copyrighted works that exist simply because the individual created the work. The individuals who have moral rights in these works are not necessarily the copyright holders and may not even be in possession of the copyrighted work.

Last year we were faced with several different proposals to create moral rights for artists. Senator Kennedy introduced legislation that ultimately was reported by this subcommittee and by the full committee that was similar to the legislation we will consider later today. Congressman Mrazek and Congressman Yates proposed an amendment to the Interior appropriations bill that would have created a right of film directors and screenwriters to object to alteration of some films. On a related issue, Senator Cochran discussed offering his copyright work for hire legislation as an amendment to the Berne Convention implementing legislation.

I reluctantly opposed all of these efforts last year, not because I was opposed to moral rights or to an adjustment in the work for hire doctrine, but because I believed that we in Congress should examine these issues in a thorough and comprehensive way. In opposing those efforts last year I promised that I would undertake such a thorough and comprehensive review in the first session of the 101st Congress. Today we begin that review.

I think that it is important that, if moral rights are to be incorporated in the copyright law, they not be implemented piecemeal but rather in a coherent and logical way, if possible. If Congress

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decides that moral rights are a desirable and appropriate addition to the copyright law, it is important that they are integrated in a manner that ensures that the rights of copyright holders, artists, and users of copyright material are all protected.

The copyright law has always represented a balance among the interests of all these parties. Congress from time to time is called upon to address perceived imbalances in the copyright law that favor the interests of one party over another. I believe it is our responsibility to monitor this balance as technology advances and as economic conditions change and, if such imbalances occur, to attempt to correct them. But I also believe it is incumbent on these advocating change in the copyright law to show that such change is necessary and that by correcting one problem we are not creating many others.

I look forward to the testimony presented today as well as the testimony we will receive on July 20 and August 3, when we will have subsequent hearings. I am interested in the subject of moral rights and believe that it is a subject that deserves our attention. I am unsure in my own mind as to how we should change it, but I am as interested as anybody in the process of the hearings today, to attempt to get both sides of the issue so that we might make judgments based on merit and not just one economic force over another, or one emotional force over another. I am undecided on these important questions and am hopeful that these hearings will help resolve some of the problems in my mind.

[A copy of S. 1198 follows:]

,

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE.

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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, 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

5 case of a sculpture, in multiple cast sculptures of 200 or fewer. A work of visual art does not include—

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"(1) any version that has been reproduced in other than such limited edition prints or cast sculptures;

“(2)(A) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audio visual work, book, magazine, periodical, or similar publication;

"(B) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

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

"(3) any work made for hire;

"(4) any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connec

tion with any item described in paragraph (1), (2), or (3); or

“(5) any work not subject to copyright protection under section 102 of this title.".

OS 1198 IS

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1 SEC. 3. RIGHTS OF ATTRIBUTION AND INTEGRITY.

2 (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— "(1) shall have the right—

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"(A) to claim authorship of that work, and

"(B) to prevent the use of his or her name as the author of any work of visual art which he or

she did not create;

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

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

the event of a distortion, mutilation, or other modifica

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

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

113(d), shall have the right

"(A) to prevent any distortion, mutilation, or other modification of that work which would be

prejudicial to his or her honor or reputation, and any intentional or grossly negligent distortion, mutilation, or modification of that work is a violation of that right, and

OS 1198 IS

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