EXECUTIVE SUMMARY
The
Visual Artists Rights Act of 1990 (VARA) directed the Copyright Office
to conduct a study to assess for Congress the impact of the waiver
provisions contained in that legislation.
On
December 1, 1992, the Copyright Office submitted to Congress an Interim
Report summarizing the responses to its earlier Request for Information
and outlining other proposed inquiries and avenues of research it would
undertake on this question. This final report represents the completed
Office study responsive to Congress' request.
I. THE VISUAL ARTISTS RIGHTS ACT OF 1990
In
1990, Congress for the first time legislated limited moral rights of
attribution and integrity to authors of narrowly defined works of
visual arts. These rights, following the model suggested in the
international Berne Convention for the Protection of Literary and
Artistic Works, mirror rights granted to authors by most industrialized
nations of the world. They guarantee to authors of so-called fine arts
and exhibition photographs the right to claim or disclaim authorship in
a work; limited rights to prevent distortion, mutilation, or
modification of a work; and the right, under some circumstances, to
prevent destruction of a work that is incorporated into a building.
After hearing testimony from artists' representatives, commercial users
and other interested parties, Congress determined that the artists'
rights should not be absolute, but that they should be tempered by
commercial realities, provided that provisions were enacted to insulate
authors from being unduly influenced to give away their new-found
rights. Thus, the legislation provides for waiver of these moral
rights, but only by a signed, written agreement specifying the work and
the precise uses to which a waiver applies.
The provision for two studies by the Copyright Office gave artists
further assurance that Congress intended to review the waiver
provision's operation to assure that artists were not coerced by
unequal bargaining power to forfeit their moral rights.
An early step in the Office's research was to review state statutes to
learn which, if any, afford moral rights protection. It found that nine
states had enacted legislation before VARA to protect, to varying
degrees, authors' moral rights. Those following a so-called
preservation model protect an author's rights of attribution and
integrity and generally protect artistic works against unauthorized
destruction. The moral rights statutes do not protect against
destruction but do ensure an author's rights of attribution and
integrity in a class of works that is sometimes limited to visual or
graphic works of recognized quality. A tenth state's law, enacted after
VARA, follows a third model that protects against alteration or
destruction and ensures proper attribution but applies only to works
publicly displayed in state buildings.
Moral
rights are also protected indirectly by state tort, privacy and
publicity laws; by the federal protection of the Lanham Act; and by the
Copyright Act's protection of an author's exclusive rights in his or
her derivative works, and limits on a mechanical licensee's rights to
arrange an author's musical composition.
The extent
to which state common law and legislative protection will survive the
federal Copyright Act's preemption provisions is unclear. Similarly,
little information is available about the effectiveness of authors'
protection under these laws.
II. MORAL RIGHTS IN OTHER COUNTRIES
Nations
that provide their authors and artists with protection in the nature of
moral rights protection do so using various approaches. Some use
statutory law to balance the interests of artists and their creations
with the interests of copyright owners and other users of works. The
statutes may be categorized as laws of copyright, design rights,
passing-off, unfair competition, tort, or contract. In other countries,
the personal rights of attribution, paternity, and integrity have been
defined and shaped by the courts.
Nations that
are members of the Berne Convention for the Protection of Literary and
Artistic Works are required to meet a minimum level of protection, as
set forth in the Berne Convention's Article 6bis. The multilateral
treaty does not address waiver of moral rights; waiver is neither
sanctioned nor prohibited, and individual member nations may implement
the Berne Convention in their own ways.
However,
since the inception of the Berne Convention, member nations have had
intense interest in supporting not only authors' rights to exploit
their works for profit, but also in preserving authors' personal
relationships with their works.
The Copyright Office traces
the history of Article 6bis in Chapter II of this Report, examining its
evolution to its present day form.
Also in Chapter
II, the Office surveys a sampling of 14 individual nations and the
European Community, selected to represent a wide range in size,
culture, and economic development. The Copyright Office examines
legislation and case law to determine how and to what extent the
various nations protect authors' moral rights. Nations such as France
provide broad protection for authors and their creations. In countries
such as the United Kingdom, the artist relies more on contract law than
copyright law for moral rights protection.
Examination
of the evolution of Berne's Article 6bis, together with a survey of
legal protection of authors' moral rights worldwide, provides a
perspective that allows us to view moral rights provisions in the
United States law with the goal of informing Congress whether or not
the Visual Artists Rights Act of 1990 is fulfilling the United States'
treaty obligations this was not a direction to the Copyright Office
under the Berne Convention, and whether or not the waiver provisions of
17 U.S.C. Section 106A are fulfilling Congress' intent in passing that
legislation.
III. MORAL RIGHTS IN UNITED STATES CASE LAW
This
chapter first summarizes significant federal case law that assessed
moral rights prior to enactment of the Visual Artists Rights Act, and
then summarizes judicial decisions rendered since enactment of VARA.
Although
moral rights were not recognized in U.S. copyright law prior to
enactment of VARA, some state legislatures had enacted moral rights
laws, and a number of judicial decisions accorded some moral rights
protection under theories of copyright, unfair competition, defamation,
invasion of privacy, and breach of contract. Such cases have continued
relevance, not only for historical interest, but also for precedential
value because state and common law moral rights protection was not
entirely preempted by VARA. Arguably, state laws of defamation,
invasion of privacy, contracts, and unfair competition by "passing off"
are not preempted. Further, VARA rights endure only for the artist's
life, after which preemption ceases.
In Vargas
v. Esquire, artist Antonio Vargas created for Esquire magazine a series
of calendar girl illustrations, some of which were published without
his signature or credit-line. The U.S. Court of Appeals for the Seventh
Circuit ruled that the rights of the parties were determined by the
contract in which Vargas agreed as independent contractor to furnish
pictures and granted all rights in the artwork to Esquire. The court
rejected theories of implied contract, moral rights, and unfair
competition. In Granz v. Harris, a jazz concert was re-recorded with a
reduced playing time and content, such that a full eight minutes was
omitted. The contract required the defendant to use a credit-line
attributing the plaintiff-producer, who sued. The Second Circuit
decided that selling abbreviated recordings with the original credit
line constituted unfair competition and breach of contract. Whether by
contract or by tort, the plaintiff could prevent publication "as his,
of a garbled version of his uncopyrighted product." In Gilliam v.
American Broadcasting Cos., ABC broadcast the first of two 90-minute
specials, consisting of three 30-minute Monty Python shows each, but
cut 24 of the original 90 minutes. Monty Python sued for an injunction
and damages. The Second Circuit ruled that ABC's actions contravened
contractual provisions limiting the right to edit the program and that
a licensee's unauthorized use of an underlying work by publication in a
truncated version was a copyright infringement. In a theory akin to
moral rights, the court said that a distorted version of a writer's or
performer's work may violate rights protected by the Lanham Act and may
present a cause of action under that statute. The concurrence cautioned
against employing the Lanham Act as a substitute for moral rights, and
believed the court should restrict its opinion to contract and
copyright issues. Another case, Wojnarowicz v. American Family
Association, involved a group that protested an artist's work by
reproducing 14 fragments in a pamphlet. The U.S. District Court for the
Southern District of New York found for the artist under the New York
Artists' Authorship Rights Act, but dismissed claims under the
Copyright and Lanham Acts.
A few decisions
have been rendered since enactment of VARA, although none has yet
focused on waiver. Most notable of recent cases is Carter v.
Helmsley-Spear, Inc. A large art installation by three sculptors was
commissioned for a Queens warehouse, but the landlord, demanding the
artists vacate the premises, indicated plans to remove the work. The
artists sued in the district Court under VARA and prevailed. The trial
court determined that the work was covered by VARA; it was a single
work of art, was not a work of applied art, and was not a
work-for-hire. The fact that the artists retained their copyright
tipped the balance in favor of their independent contractor, rather
than employee, status. The district court found that intentional
alteration of the installation would injure the artists' reputation.
Suggesting a two-tired approach, that court found the work qualified as
one of "recognized stature" in that it has "stature," i.e., is viewed
as meritorious, and this stature is "recognized" by art experts, the
art community, or some cross-section of society. Rejecting various
constitutional attacks on VARA, the district court granted an
injunction but said VARA conveyed no right to complete a work and did
not justify damages in this case.
On appeal,
the Second Circuit analyzed the facts of employment and concluded that
the sculpture in question was a work made for hire and therefor was
outside the scope of VARA's protection. It reversed the lower court's
award of injunctive relief and nullified the only case that had awarded
relief to an artist under VARA.
IV. COPYRIGHT OFFICE INTERIM REPORT
On
June 10, 1992, eighteen months after VARA's enactment, the Office
published a Request for Information in the Federal Register seeking
comments on artists' bargaining power relative to that of commercial
users of artworks, on parties' awareness of the VARA rights and their
inclusion of waiver provisions in contracts, on the contractual
compliance with the law's requirements that works and uses subject to
waivers be specifically identified, on the actual exercise of waivers,
and on the relative numbers of waivers granted for rights of
attribution and integrity for moveable works of visual art and for art
works incorporated into buildings. We asked for empirical evidence on
the kinds of contracts that include waivers and on the economic impact
of those waivers; and we requested parties' assessment of whether the
artist's renown affected his or her waiver of rights, and on what
factors influence artists' decisions to waive rights. Finally, we asked
for comments on possible constitutional problems that might arise if
waivers were prohibited. We also welcomed comments on how best to
gather information for the Office's final report to Congress.
This
initial inquiry on the impact of waiver provisions yielded seven
comments. Respondents included purchasers of artworks, a law professor,
and several groups who represent artists' interests. Most comments
reflected the respondents' limited experience with contractual waiver
of ARA rights. One respondent polled a sampling of its membership on
VARA issues. That poll revealed that most artists surveyed had little
or no experience with contracts incorporating moral rights.
V. COPYRIGHT OFFICE SURVEY AND FINAL REPORT
The
most structured search for empirical evidence on the impact of waiver
was the Office's survey, formulated with the assistance of a panel of
copyright and visual arts experts and distributed to hundreds of
art-related organizations on national, state and local levels. Many of
those organizations, particularly state art councils, volunteer art
lawyers and art schools, in turn disbursed hundreds of copies of the
survey to their members. These efforts, coupled with organizational
newsletters describing the VARA survey and Office discussions with
artists and their representatives, assured widespread distribution of
our survey.
information. It asked for objective
responses to questions about participants' awareness of VARA rights,
and their connection to the art world. It questioned visual artists
about their professional experience and their contractual experience
with waiver. All respondents were asked for specific information about
art contracts, whether they had encountered any waiver provisions, and
the effect of such provisions on relative bargaining power. Finally,
the survey provided an opportunity for open-ended comments on VARA
concerns.
More than 1,000 persons filed written
responses to the survey. Responses were received from 47 states and the
District of Columbia, and 955 respondents were self-described visual
artists. Most artists grossed less that $10,000 annually from their
artwork and most had multiple sources of income.
About
three-fourths of the respondents claimed awareness of moral rights,
although many who elaborated in written comments stressed the need for
more education of artists. Fewer than half knew that moral rights could
be waived. Seven percent of those who answered the question said waiver
clauses were routinely included in artists' contracts, but nearly 40
percent said waiver clauses were part of contracts for commissioned
works.
Nearly one quarter of artists covered by VARA
knew of artists who had been asked to waive their moral rights.
Thirteen percent of artists covered by VARA said they had refused
contracts because they included waivers and a similar number had
insisted that a waiver clause be struck from a contract. These artists
were generally those who earned more than $25,000 annually from their
art or who were represented by an agent. More than half of those who
had rejected a request for waiver said such rejection voided the deal.
In general, those participants who filed written commentary believe
that VARA does little to enhance the artist's inferior bargaining
position relative to the buyer.
More than half of the
respondents who had experienced waivers said they complied with the
specificity requirements of VARA, and about one-third said contracts
contained a separate price for the waiver of moral rights. However,
most art contracts continue to be oral and therefore cannot contain
valid waiver clauses under the terms of VARA. Many artists decried the
complexity of art contracts and stated that legal requirements were too
burdensome and legal advice too costly.
Comments on
the effectiveness of VARA were predictably varied. Some artists viewed
the legislation as excessive regulation of the art business. Others
affirmed the Act's goals, but considered the waiver provisions to be an
"escape clause" for buyers to avoid honoring moral rights. A third
group of artists was convinced that the law would not change the
relatively weak bargaining power of artists. Some decried the
limitation of statutory protection against destruction of works to
those of "recognized stature" as being too narrow and incapable of
definition. One commentator suggested that waivers should be valid only
where the purchaser demonstrates a "compelling reason" for requiring
one. Several comments remarked that the law was unenforceable, largely
because enforcement is too costly.
VI. COPYRIGHT OFFICE PUBLIC HEARING
On
June 21, 1995, the Copyright Office held a public hearing to solicit
comments on the effect of the waiver of moral rights provision of VARA.
The Office also accepted written comments submitted by July 31, 1995.
Those
responding to the Copyright Office Request for Comments through oral
and written testimony were by no means unanimous in their views, but a
few themes stood out. It is early to measure effects of VARA waiver
provisions due to the low level of VARA awareness. VARA waivers are
rare because written contracts for art transactions are rare. There is
a distinction between "moveables," such as paintings and sculptures,
and works incorporated into buildings. Waivers for the latter, as
recognized in section 113(d), are likely to increase after the Carter
case.
Some believed waiver should be repealed or
modified for moveables (that is, for the majority of works addressed in
section 106A). Most saw the need for the sec. 113 waiver provisions for
works incorporated into buildings. For one attorney, however, the fact
that most contracts for major commissions will now routinely require
waivers means that the sec. 113 waiver provision should be tightened,
if not repealed.
The discussion distinguished
moveables from major commissioned works in general, and predicted pro
forma waivers for the latter. The comments indicated that the latter
category includes large, government-commissioned works as well as
installed pieces, however, and sec. 113 deals only with works
incorporated into buildings; all other VARA works are addressed in sec.
106A. If waivability is desirable for installed works and ill-advised
for moveables, therefore, the answer may not be so simple as repealing
the sec. 106A waiver provisions and preserving those in sec. 113(d).
The statute may need clarification on this point. A related question is
whether removal of a site-specific work, even without damage, would
infringe rights of integrity or attribution.
Many
panelists believed that repeal of sec. 113 waiver would result in a
chilling effect on creation of art, since property owners may be
unwilling to commit to a permanent structure. On the other hand, there
may be a chilling effect even if building owners have secured a waiver:
several artists reported that, had they been operating under a waiver,
they would have undertaken the project, but with a different scale and
design. Some predicted a standard term in landlord-tenant contracts
requiring tenants to get waivers or refrain from installing art.
Other
recommendations were made for VARA. For example, several parties agreed
that one joint author should not have the ability to waive for all
co-authors. Others believed VARA should apply to print or broadcast
reproductions of works, thus covering distortions in books, magazines
and electronic media.
VII. WAIVER PROVISIONS IN ARTISTS' CONTRACTS
The
terms "gallery," "dealer" and "agent" are often used interchangeably in
art contracts, but galleries, in their function as exclusive artists
representatives, are more likely than dealers and agents to be involved
in waiver of moral rights. Visual Artists and Galleries Association
Executive Director Robert Panzer stated that waivers will most often be
initiated by purchasers, who may insist that a sale include a written
contract waiving moral rights.
About a dozen examples
of moral rights waivers from sample contracts were submitted in
response to the Copyright Office's 1995 Request for Information. Other
examples were found in the Nimmer copyright treatise. One Nimmer
contract offers broad language to be used in a commission agreement or
bill of sale if an artist is willing to waive moral rights. With
respect to the VARA requirement that the use of the work for which
rights are waived be specifically identified, Nimmer suggests simply
that the work's use is as a work of visual art, and the waiver would
apply to all applications in which either the attribution right or the
integrity right may be implicated.
The contracts
submitted included a variety of waiver provisions. A Campbell's Soup
Art Contest demanded of entrants that they waive all moral rights as
well as copyright. A Seattle Transit Project contract permitted the
metro system to remove a work without the artist's approval if a
designated arts committee so recommends and if the artist has the right
of first refusal to purchase the work. A Massachusetts Bay
Transportation Authority contract provided that state moral rights in a
work that cannot be removed without substantial damage are
"automatically waived" unless they are expressly reserved in a recorded
instrument.
A 1994 agreement with the Los Angeles
County transportation authority permitted removal of artwork in the
Authority's sole discretion, even where removal could cause physical
defacement, and an art installation at the Philadelphia Convention
Center required complete waiver of VARA rights. Finally, some lease
agreements between tenants and landlord are beginning to limit tenants'
ability to install art without first obtaining waiver and/or landlord's
permission.
VIII. RECOMMENDATIONS OF THE REGISTER OF COPYRIGHTS
The
Copyright Office examined and weighed carefully the varied opinions and
experiences of artists, users and other interested parties reported in
response to its Request for Information, formal survey and public
hearing. It considered sample artists' contracts that contained waiver
provisions, as well as evidence of state case law and legislation on
moral rights and the experience of representative foreign nations who
have recognized moral rights for many years. These sources confirmed
that because federal moral rights legislation is in its infancy in this
country, and because artists, and often users, are frequently unaware
of the international moral rights standard established by the Berne
Convention, accurate predictions on the impact of VARA's waiver
provisions are difficult to make at this time. However, some comments
and conclusions are appropriate.
Refreshed 13 March 2000
romanelli@id.ucsb.edu
