This court's position on the matter Is embodied in the following state ment One salutary purpose of the Lanham Act in this context is to pro tect the creative artist's right in his or her creation and thus provide incen tive to be creative protecting and fostering creativity stimulates rather than sufles competition."

As stated above, the court protected Tarkay's style under trademark law, but not under copynght law. A new body of law is developing, however, in the area of computer law which may afford stylistic protection to an Ists under copyright law as well.

A New Artist Right: Access

What happens when an artist needs a copy of one of their works of art in order to put it in a catalogue reasonne of their works? What does a publisher of an artist's work who would like to include several of the artist's older works, which have been sold to museums or individuals, do to get transparencies. When a dealer is selling an artist's work and would like to put together a brochure or catalogue for prospective buyers, how do they get slides of earlier works? In any of the above examples if the artist has not maintained publication quality transparencies of their work they will need access to the art works in order to have them professionally photographed. The situation is common but it has posed a great problem for artists, museums and dealers. The reason being that artists, even though they retain the copyright to their work, have not had right of access to their own creations.

Prior to January 1, 1978, when major changes occurred in the copyright law, when an artist sold an art work they lost any and all rights they might have to the work including copyrights or any other rights against destruction or alteration. Under the old regime when someone bought an art work they bought it in a complete and total fashion. As of January 1, 1978, the copyright law changed and provided that the physical embodiment of a work and the copyright were separate and distinct. Thus when one purchased a painting or other work of art they did not purchase the copyright and did not have any right to reproduce it in any fashion. The right of reproduction stayed with the artist. The copyright law was silent, however, as to how an artist could exercise their rights. If the artist had maintained good quality transparencies of their works they would simply use them in order to create reproductions. However, if they had not or lost the slides and needed access to their sold works they were at the mercy of the owner of the work. The copyright law was silent as to any "right of access" to a work of art. When an artist is denied access to their work they are effectively denied the ability to exercise their copyright thus negating the change created for their benefit in 1978.

The resulting instances of artists' inability to copy their works for legitimate purposes are numerous. The reasons for denying artists the ability to copy their works by owners of the work ranged from honest concern about the safety of the work to mercenary attempts to extort access fees from artists. At times it was simply vindictiveness based on bad feelings that had arisen over time between the artist and the collector or institution which held the work.

Museums often found themselves on both sides of the situation. While many refused artists the right to have access to their works others were stymied in their preparation of catalogues or retrospectives because they did not have access to works of art held by others.

Artists and their dealers who might have wanted to make posters or limited edition prints based on an original that the artist no longer held who were denied access lost the ability to do so. As a result thousands of dollars in potential profits have been lost.

A number of lawyers in the art field, myself included, have argued that under the law of equity there is, even if not specifically stated in the copyright statute, "an implied right of access", a compulsory easement to the art work by the owner. To hold otherwise frustrates the intent of the law. This legal argument while not found in the copyright law has been recognized by courts in real estate transactions. Under certain circumstances, due to the nature of subdivisions of properties, there have been situations created where properties end up having no egress to them from any road. This blocks all access to the "landlocked" piece of property. Courts have recognized the inherent inequity of this situation and have granted landowners, non-exclusive easements (rights of travel) over their neighbor's land so that they can get to and from their property. This avoids the situation in which a person is denied the right of enjoyment of a property right.

Until now this theory has been just that, a theory advocated by art lawyers in order to protect their artist clients. Finally, judicial support for this argument has been articulated. In a recent holding in the CCNV v. Reid case, yes, that is the same case that went to the Supreme Court three years ago where the Supreme Court held that the creative party and not the commissioning party owns the copyright to a work. It was hailed as a great victory for independent contractors and artists. In their decision the Court, after finding that Mr. Reid was not an employee of CCNV, remanded the case back to the trial level to determine whether or not CCNV's contribution to the work was sufficient enough to make it, CCNV, a joint author. Just before the case went to trial on that issue, the parties reached what at the time they thought was a settlement. Mr. Reid was given the exclusive copyright in all three dimensional reproductions and CCNV and Mr. Reid were given joint ownership of the copyright for two dimensional reproductions. Mr. Reid was the only one allowed to make sculptural copies and CCNV in addition to Mr. Reid could make posters, postcards, calendars and the like for fundraising purposes. The agreement was entered as a Consent Judgment and signed off by the Court on January 7, 1991.

At the time it was presumed to have brought an end to this protracted litigation which had commenced in 1986. However, peace was not to be. When Mr. Reid asked CCNV for access to the sculptures so that he could make a mold of the work thereby exercising his exclusive three dimensional copyright in the work CCNV refused to allow Mr. Reid near the piece. The parties argued back and forth through difficult and intense negotiations but reached an impasse. CCNV refused to let Reid make his casts. The parties went back to Court and fully briefed this new issue. CCNV's position was that if Mr. Reid wanted to exercise his three dimensional reproduction rights he would have to resculpt the work. Mr. Reid argued under two theories: One, that the denial of the access was a form of copyright infringement, as it limited his copyrights, and the second was a technical argument by the way of equitable relief. The Court granted Mr. Reid's petition based not on the copyright law but under the general principles of equity and under a judicial doctrine known as the "All Writs Act". This obscure act gives the Court undefined powers to enforce its earlier orders. The earlier order in this case was the Consent Judgment. The Court found that, "Reid is entitled to a limited possessory right of his own the nature of an implied easement of necessity to cause a master mold to be made of this sculpture whereupon it (the sculpture) shall be returned promptly to

CCNV." The Court specifically gave CCNV 90 days to turn the piece over to Mr. Reid who is required to have insurance on the piece for the benefit of CCNV. Mr. Reid has 30 days to create the mold and thereafter has to give the work back to CCNV. CCNV will have no interest in the mold and all costs of making the mold, of course, would be borne by Reid.

What is very important in this ruling is that for the first time a Court recognized in a judicial proceeding that an artist has a right of access to their work in order to exercise their copyrights.

This ruling, while technically only binding in the District of Columbia, is a federal case and will probably be looked on with great care by the other jurisdictions and hopefully be followed. While this may or may not be the end of legal disputes between James Reid and CCNV the battle has led to two very important legal rulings which have benefitted artists greatly.

NEW VISUAL ARTISTS RIGHTS LAW

After more than ten (10) years of prompting from the arts community, Congress has finally granted artists moral rights. "Droit moral" as these rights are known in Europe became incorporated into law pursuant to the Visual Artists Rights Act of 1990. Technically the law amends the existing copyright law. The new law applies to "works of visual arts" which are defined as paintings, drawings, prints or sculptures existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the artist, or, in the case of a sculpture in multiple cast, carved, or fabricated sculptures of two hundred or fewer that are consecutively numbered by the artist and bear the signature or other identifying mark of the artist. It also includes still photographic images produced for exhibition purposes only, which exists in a single copy that is signed by the photographer or in limited additions of 200 copies or fewer that are also signed and consecutively numbered by the photographer.

The act specifically excludes from the definition of protected works any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audio visual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or other similar publication. It further excludes any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container. It also eliminates from coverage all "works made-for-hire" or any object that would not normally be entitled to copyright protection under the existing provisions of the copyright law.

The rights which are granted to artist fall into two basic categories; the right of attribution and the right of integrity. Attribution entitles an artist the right to claim authorship of a work of art and/or to prevent the use of their names as the artist on a work of visual arts which they did not create. The artist shall also have the right to prevent the use of their name as the artist of a work in the event of a distortion, mutilation, or other modification of the work which would be deemed prejudicial to the artist's honor or reputation.

The right of integrity grants an artist shall have the right to prevent any intentional distortion, mutilation, or other modification of a protected work of art, which would be prejudicial to their honor or reputation. An artist also has the right to prevent the destruction of an art work of recognized stature. There are no definitions nor any guidelines explaining what constitutes "prejudicial to honor or reputation" nor of "recognized stature." Those issues will be defined by judges and juries with the help of legions of art experts and lawyers.

The rights conferred in this law are only available to the artists themselves. This is true whether the artist is the copyright owner of the work or not. When a work is a joint work both artists have the rights granted under this law.

The law, of course, does not cover modification which results from the passage of time. Deterioration due to the inheritant nature of the materials used a work will not be deemed to be a distortion or mutilation. Specifically, the law does not place an affirmative obligation of maintenance on an owner. The scope of the law appears to be limited to preventing an active act of modification on the part of the possessor/owner of the work of art. However, in an attempt to encourage preservation, without rising a law suit, the law specifically excludes from the definition of improper modification the act of art conservation. The law also excludes any public presentation which would include lighting, placement of the work that is not destructive. What this seems to address are "sight specific works." It would appear that moving a "sight specific work" would not violate this law.

The duration of the moral rights vary, depending on when the work of art was created. In regard to protected works of art created after the effective date of the act (June 1991) the duration shall be for the life