to these rights of artists. Perhaps it could be argued that nature of the use and effect upon the market for the original work might be relevant, but perhaps there are more direct factors.

I still don't see how users have any need to use an artwork to deprive the artist of moral rights. Dealers, collectors, museums, and art administrators

have no need to use works of fine art in a manner which causes destruction or mutilation or deprives the artist of credit.

Perhaps only in the case of Elaine K., where the municipality made what it considered necessary repairs, would there have been a fair use justifying a

defense.

If a fair use defense is allowed, it should, therefore, be limited to the making of necessary repairs on a deteriorating or damaged work if the artist, having been given notice, refuses to make the repairs.

Of great concern is the recognized stature requirement applied to destroyed works. (Section 106A(a)(3)(B)) The logic of the bill, in part, perhaps is that destruction does not necessarily affect honor or reputation, whereas mutilation should be actionable even with unrecognized works because it may affect honor or reputation. Clearly, not every child's fingerpainting should be immune from destruction. A law which requires saving everything would only create a world cluttered with kitsch. (See Karlen, "Aesthetic Quality and Art Preservation," 41 Journal of Aesthetics and Art Criticism, 309 (1983) for extensive discussion on quality standards)

The bill correctly imposes a minimum standard for preservation and correctly sets forth the types of witnesses whose testimony is most appropriate. (Section 106A(a)) One question is, will the work of an unknown artist have to

stand on its own merit, whereas the work of a well-known artist can rest merely on the artist's laurels?

As a practical matter, in all the cases that we have handled, we found that if an artist has a good reputation, almost always the work, no matter how trivial, will pass muster. An obvious reason why "recognized stature" is not a problem is that many potential defendants are logically prevented from using the defense. A collector, museum director, or other person commissioning, purchasing, or displaying a work is hard-pressed to deny "recognized stature" when that person initially chose the work. In a sense, there is an estoppel, and we have rarely seen an art destruction case defended based upon only the quality requirement.

However, the unknown artist or the artist who has created very few works will sometimes have problems relating to proof, especially if the work has never been reviewed professionally before its destruction. For example, in the Kupiec case, the artist had not created very many works during her lifetime, and although the work was certainly of high quality, it had not had the professional reviews it deserved before its destruction. This created some

obstacles for the artist.

In contrast, in the case of Harold C. who creates works using computers, no one bothered to argue that his work was semi-mechanically created when he made a claim. His reputation was such that "recognized quality" was not even raised.

In the case of Mr. S., who had created a well-known outdoor sculptural work for a municipality under a program sponsoring minority artists, the artist's lack of any prior achievements made his proof of recognized quality almost impossible.

In any case, if the prospective defendant has commissioned the work,

usually he is estopped to deny "quality" or "stature" on the ground that he commissioned the work the way it was.

There is a dichotomy in the bill between destruction, on the one hand, and modification, on the other hand.

mutilation,

distortion, and

(Section

106A(a)(3)(A) and (B)) The problem is that this distinction cannot always be made easily. In the case involving selected sand placed in separate containers, mixing all the sands together in one container clearly destroyed the work, which could never be reassembled. In this light, perhaps it could be argued

that if the work can be reassembled and restored to its original condition, then The problem is that virtually all works normally

it has not been destroyed.

considered destroyed can be restored if one is willing to spend enough money.

This reminds me of the Camoin case in France where a dealer waited outside the artist's house for the artist to throw away his torn canvases. The dealer would sew the shredded canvases together and sell them as works by the artist.

In the case involving Mr. A.W., the artist received in the mail from a former friend his original work upon which the disgruntled friend had written profanities and which had been cut up into four pieces. If the artist had been willing to spend enough money, he could have restored the piece to its original condition, at least to all appearances. In the case of Dan C., a dealer felt he could make more money by dividing the piece into four separate canvases and selling them separately to customers in different parts of the country. Theoretically, the artist could re-acquire the four separate pieces, if he had enough time and money, and paste them together into the original piece.

The same problem arose in the Burton case. The plaintiffs' murals had

been installed near a construction site. When the

almost completed, the murals were upon other sections of the murals.

construction project was

cut up, used as gates, and dirt was piled However, when the pieces of the murals were later stored in a warehouse, it became apparent that they could

theoretically be restored.

Another example is the Fey case. In that case, the artist and his dealer had a furious argument about a particular piece. When the artist tried to remove the piece from the gallery, the dealer grabbed one end and started a tug of war resulting in the piece being torn in two.

It is difficult to select any standard to solve this dichotomy. After all, whether the piece has been mutilated or destroyed, theoretically it cannot be restored to its original state no matter what repairs a.e made; microscopically there must be changes.

the problem.

However, I think that appropriate language could solve

However, if one is

Perhaps the rule could be that if the work can be restored so that it has some artistic integrity, then it has only been mutilated. willing to spend enough money, any piece can be restored. A good answer for this problem was suggested by the judge in the Schnorr case, by implication. There must be a standard of reasonableness with regard to expenditures. example, if the costs of repair or restoration exceed the fair market value of the work, then the work has been "totalled" or destroyed.

For

IV.

CONCLUSION

In conclusion, the bill is a narrowly drafted piece of legislation designed to remedy both prevalent problems relating to art preservation and crediting and to have a minimal impact on user groups. If anything, the drafters of the

bill have leaned over backwards to accommodate user groups by (1) restricting the scope of subject matter coverage; (2) imposing the requirements of "recognized stature" and "prejudice to honor or reputation"; and (3) allowing the fair use defense.

Again, Mr. Chairman, I commend you for holding this hearing and for your leadership on intellectual property issues, in general. I would be happy to answer any questions you or other members of the Committee may have.

All

cases without citations (except the Camoin case) are cases we been involved with. Surnames are given only for cases that are a matter of public record.

have

Copies of articles written by Peter H. Karlen cited herein are provided herewith.