I want to yield to the Senator from Massachusetts and to tell him that I regret not being able to facilitate his request last year in passing his bill. And I assure him that I am going to proceed with the hearings and certainly give him a markup in the committee regardless of what my feelings are because I know of his deep interest in this subject matter. He has been very patient in going along with the extended hearings.

Senator Kennedy.

OPENING STATMENT OF HON. EDWARD M. KENNEDY,

A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS Senator KENNEDY. I want to thank you, Mr. Chairman, for having these hearings and for your continued work on these important issues. The discussion of moral rights has expanded and evolved since we first initiated this proposal. I know there are many additional aspects of this concept besides that which we will comment on today. I know you are focusing on those features, also. It is a complex and difficult issue. I appreciate your opening statement. Hopefully, as you consider the wide range of implications on the whole issue of moral rights, you will also understand what we are attempting to achieve with S. 1198. Hopefully, we will be able to win your support for this particular piece of legislation.

I introduced S. 1198 because I believe that the legitimate needs of artists to protect the integrity of their work is entirely compatible with the public interest. The status quo is not good enough, and we must act.

The legislation which I have introduced establishes the rights of attribution and integrity. It requires that a creator's name accompany a work of art, and also permits an artist to disclaim authorship of his work if it is altered or distorted.

In addition to protecting the authorship rights of creative artists, the bill also protects the integrity of works of fine art. The intentional and negligent mutilation or destruction of a work of visual art is prohibited under the bill and would be subject to copyright infringement, with the exception of criminal penalties.

This is the third hearing the subcommittee has held to consider this issue. I am pleased with the record that the committee has established on the issue and the compelling case that witnesses have made over the last several years regarding the injuries artists suffer on a regular basis, along with their absolute lack of any remedial or injunctive relief from these injuries.

How can we continue to fail these individuals who contribute so enormously and eloquently to our national heritage?

In the course of these committee hearings I have often spoken of the uniqueness of the visual arts as a medium of expression and how a painter's work is clearly his or her own individual expression. I know that the committee will address copyright needs of other disciplines in the weeks ahead, but I do believe that the visual arts are different. They are unique works and the result of a single creative vision.

This bill addresses a narrow and specific problem, the mutilation and destruction of works of fine art which are often one-of-a-kind and irreplaceable. Over the past two Congresses I have worked

with the copyright community to craft a precise bill that does not inadvertently affect other copyrighted works. I look forward to speedy approval of the bill by the committee and the full Senate without changes that would upset this delicate balance.

I welcome this hearing today. We will hear from several expert witnesses who have varying perspectives and views on the establishment of such rights for visual artists.

Michelangelo once said that his goal in sculpture was really very simple, to set free the images that he could see imprisoned in the stone. The visual artist bill seeks to protect the fundamental freedom of expression that Michelangelo described. We have come a long way with this bill, made many compromises and technical improvements in it, and now look forward to completing the task.

Thank you again, Senator, for your responsiveness in calling this hearing, and I look forward to the testimony of the witnesses.

I have a brief fact sheet on the visual artist bill which I would like to have included in the record.

Senator DECONCINI. Without objection, it will appear in the record.

[The fact sheet furnished by Senator Kennedy follows:]

Senator DECONCINI. Thank you, Senator Kennedy.

I now welcome my ranking member on the committee, Senator Hatch, who has been a leader in the area of copyrights, trademarks, and patents. I yield to him for any opening statement that he may have.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

Senator HATCH. Thank you, Senator DeConcini. I want to compliment you for holding this hearing today.

I believe that the principal purpose of the copyright law should be to secure and maintain the rights of those who create works of art, not those who would seek to profit from the efforts of those creative artists. When the copyright law succeeds in this goal, we all benefit, as artists are then given the necessary incentive and freedom to create these great works of art which enhance all of our lives.

Therefore I am glad to have the opportunity which today's hearing presents to hear from artists and others active in the arts as to how the copyright act can be amended to best serve our Nation's visual artists.

I am interested in fashioning a copyright law that will stimulate and encourage artists and creative people. Unfortunately, many who have raised questions about this bill and its predecessors or who question the entire concept of so-called moral rights for artists are sometimes accused of being insensitive to the interests of visual artists. Nothing could be further from the truth. The questions that have been raised about this bill and about other forms of moral rights legislation are based on very real concerns that such legislation might depress the healthy American art market and might dry up available commercial opportunities for young contemporary artists.

By any measure, the current American art market favors the interests of contemporary artists more than do the markets of any other country, particularly those European nations which have most fully embraced the concept of noneconomic moral rights. The general art market in this country is undeniably healthy; for established artists, the market is truly booming. And I might add that it was the consensus opinion of the witnesses who testified on the predecessor to this bill that it is the established artists whose interests are most clearly favored by moral rights legislation.

I need to be convinced, first, of the need for this legislation, and second, of the efficacy of this bill to meet the needs of the visual artist community. I must also mention my concern about the imposition of moral rights concepts by Federal statute rather than through the bargaining of the parties to a transaction.

Unfortunately, the bill currently proposed, S. 1198, raises even more concerns than past bills on the subject, such as S. 1619, which was introduced in the 100th Congress. For instance, the earlier bill applied only to the publicly displayed works of art; S. 1198 applies, apparently, to all works of visual art wherever they are found. The right of integrity under the earlier bill prohibited substantial alterations or mutilations; S. 1198 covers any distortion, mutilation, or

other modification which would be prejudicial to the artist's honor or reputation. The rights provided under the former bill terminated on the death of the artist; under S. 1198, the rights will last another 50 years beyond the author's death. S. 1619 presumed that the right of integrity in a work of visual art incorporated in a building was waived unless expressly reserved by a recorded instrument. The present bill makes the opposite presumption, that such a work of art cannot be removed unless the author executed a written agreement consenting to its installation.

Finally, the bill relies on vague concepts, such as "work of recognized stature," which are open invitations to litigation. It serves no artist's interest to force him or her to go to court in order to prove the recognized stature of his or her work. Our Nation's judges are excellent interpreters of the law, but they have demonstrated time and time again that they are ill-equipped to make public policy, and I fear that they will be even more ill-equipped to make the aesthetic judgments which S. 1198 would ask of them and actually impose upon them.

So bearing these considerations in mind, I look forward to hearing today's witnesses and to looking at this matter as thoroughly and completely as we can, and I'll keep an open mind on every aspect of this bill and try to help you, Mr. Chairman, and others on this subcommittee and on the Judiciary Committee to do what is best in this area.

[A letter to Senator Hatch, submitted for the record, follows:]