[Federal Register: May 23, 1995 (Volume 60, Number 99)]
[Notices]
[Page 27329-27332]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my95-75]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 95-5]
Request for Comments on the Waiver of Moral Rights in Visual
Artworks
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of hearing and request for public comment.
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SUMMARY: The Copyright Office is holding a public hearing to solicit
comments on the effect of the waiver of moral rights provision of the
Visual Artists Rights Act of 1990 (VARA). Section 608 of VARA requires
the Copyright Office to study the effect of VARA's waiver provision and
to publish its findings. To fulfill the statutory obligations of
section 608, the Copyright Office is examining the extent to which
authors waive moral rights in their visual artworks under the waiver
provision. The Office also will accept written comments.
DATES: The public hearing will be held on Wednesday, June 21, 1995,
from 10:00 a.m. to 4:00 p.m. Requests to present oral testimony at the
hearing should be received on or before June 16, 1995. Written comments
by those persons testifying at the hearing should [[Page 27330]] be
received on or before June 19, 1995. All other written comments must be
received on or before July 31, 1995.
ADDRESSES: Interested parties should submit written comments and
requests to present oral testimony by mail to Marilyn J. Kretsinger,
Acting General Counsel, Copyright Office GC/I&R, P.O. Box 70400,
Southwest Station, Washington, D.C. 20024, or by hand delivery to the
Office of General Counsel, Copyright Office, James Madison Memorial
Building, Room LM 407, First Street and Independence Avenue, S.E.,
Washington, D.C., or by Telefax: (202) 707-8366. The hearing will be
held in Room 414, which is located on the fourth floor of the Library
of Congress, James Madison Memorial Building, First Street and
Independence Avenue, S.E., Washington, D.C. Written comments and a
transcript of the hearing will be available for public inspection in
the Office of the General Counsel, Copyright Office, James Madison
Memorial Building, Room LM-407, First Street and Independence Avenue,
S.E., Washington, D.C.
FOR ADDITIONAL INFORMATION CONTACT:
Marilyn J. Kretsinger, Acting General Counsel, Copyright Office GC/I&R,
P.O. Box 70400, Southwest Station, Washington, D.C. 20024. Telephone
(202) 707-8389. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: On December 1, 1990, President Bush signed
into law the Visual Artists Rights Act (VARA), which was codified as
section 106A of title 17 of the United States Code and went into effect
on June 1, 1991. VARA grants certain visual artists the moral right of
attribution, which is the right to claim or disclaim authorship of a
work, and the moral right of integrity, which is the right to prevent
any intentional distortion, mutilation or other modification of a work
which is prejudicial to the artist's reputation or honor and to prevent
the destruction of a work of recognized stature by any intentional or
grossly negligent act. VARA also provides that these rights may not be
transferred but can be waived.
The waiver provision was the most controversial portion of VARA.
Congress was concerned that artists might be compelled to waive their
rights of integrity and attribution. This concern is detailed in the
House Report:
The Committee intends to ensure that the waiver provisions serve
to facilitate current practices while not eviscerating the
protections provided by the proposed law. It is important,
therefore, for the Congress to know whether waivers are being
automatically obtained in every case involving a covered work of
visual art, whether any imbalance in the economic bargaining power
of the parties serves to compel artists to waive their rights, and
whether the parties are properly adhering to the strict rules
governing waiver.
H.R. Rep. No. 514, 101st Cong., 2d Sess. 22 (1990).
To address this concern, when Congress passed VARA it included
section 608, requiring the Copyright Office to study the waiver
provision to determine whether artists' contracts routinely provide for
waiver of moral rights. Specifically, section 608 requires the
Copyright Office to study the extent to which the rights conferred by
VARA are being waived by visual artists and to present its findings to
Congress in an interim report which was submitted on December 1, 1992,
and in a final report which must be submitted by December 1, 1995. The
Copyright Office is in the process of preparing this final report.
I. Background
On March 1, 1989, the United States acceded to the Paris text of
the Berne Convention for the Protection of Literary and Artistic Works.
Article 6bis of the Berne Convention requires countries to provide
protection of the moral rights of paternity and integrity.\1\ During
the debate on adherence to the Berne Convention, some argued that the
United States needed to enact specific moral rights legislation. The
vast majority of those seeking adherence contended that existing laws,
both Federal and State, statutory and common, were sufficient to meet
the requirements of the Berne Convention. Congress agreed with the
majority and therefore did not include any substantive moral rights
provisions in the Berne Convention Implementation Act. H.R. Rep. No.
514, 101st Cong., 2d Sess. 7-8 (1990).
\1\ This provision was added in the Rome Conference (1928). As
part of the VARA study, the Copyright Office is examining the moral
rights protection, if any, in selected countries and also looking at
case law and practices in those countries. This overview should
provide some insight into international practice on waiver of moral
rights.
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Congress acknowledged that adherence to the Berne Convention did
not end the debate about whether the United States should adopt
artists' rights laws and it did enact such a law in 1990; through VARA
it created a uniform Federal system of rights for certain visual
artists.
The scope of VARA is very narrow; it applies only to works of fine
art which are identified as ``works of visual art.'' A ``work of visual
art'' as defined in the Copyright Code includes any painting, drawing,
print, sculpture, or still photographic image produced for exhibition
purposes, produced in a single copy or an edition of 200 or fewer if
signed and consecutively numbered by the artist. 17 U.S.C. 101 (1990).
VARA specifically excludes works for hire, motion pictures and other
audiovisual works, and works of applied art.\2\
\2\ It also explicitly excludes posters, maps, globes, charts,
technical drawings, diagrams, models, books, magazines, newspapers,
periodicals, data bases, electronic information services, electronic
publications and similar publications, any merchandising item or
advertising, promotional, descriptive, covering, or packaging
material or container, and any portion or part of any of these
items. Works not entitled to copyright protection under title 17 are
also excluded. 17 U.S.C. 101 (1990).
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If a work qualifies as a ``work of visual art'' the author of that
work is granted two rights: the right of attribution and the right of
integrity. The right of attribution gives the visual artist the right
to be named as author of a work; the right to prevent use of his or her
name as author of a work he or she did not create; and the right to
prevent the use of his or her name if the work has been distorted,
mutilated or modified in a manner that would be prejudicial to the
artist's honor or reputation. 17 U.S.C. 106A(a) (1990). The right of
integrity allows the artist to prevent intentional distortion or
modification of the work that would be prejudicial to the artist's
honor or reputation, and to prevent destruction of a work of recognized
stature. Id.
The rights granted by VARA are not absolute. The integrity rights
are subject to special provisions if the work of visual art is
incorporated into or otherwise made part of a building. Where such a
work of visual art cannot be removed from the building without being
damaged or otherwise modified, the moral right of integrity in section
106A will apply unless the work was installed in the building before
the effective date of VARA or the artist signed a written agreement
acknowledging that the work may be damaged or modified when it is
removed from the building. 17 U.S.C. 113(d)(1) (1990). If the work of
visual art can be removed from the building without damage or
modification, the moral rights in section 106A will apply unless the
owner of the building complies with special notice requirements. See 17
U.S.C. 113(d)(2) (1990).
Another limitation on the rights granted by VARA concerns their
duration. Despite Berne's general requirement that the term of
protection for moral rights be at least coextensive with the term of
protection for economic [[Page 27331]] rights, which is the life of the
author and fifty years after the author's death, VARA rights endure
only for the life of the artist, or where the work is a joint work, the
life of the last surviving artist. 17 U.S.C. 106A(d) (1990).
The subject of the study is waiver of the rights of integrity and
attribution. Congress explicitly provided that the moral rights of
integrity and attribution may be waived. 17 U.S.C. 106A(e) (1990). For
a waiver to be valid it must be expressly agreed to in a written
instrument that is signed by the artist and that specifically
identifies the work and the uses of the work to which the waiver
applies. 17 U.S.C. 106A(e)(1) (1990). A waiver will apply only to the
work and uses identified in the written instrument. Id.\3\ In the case
of a joint work, a valid waiver by one author constitutes a waiver of
the rights for all joint authors. Id.
\3\ VARA does not permit blanket waivers and prohibits the
specific person to whom the waiver is made from transferring the
waiver to a third party. H.R. Rep. No. 514, 101st Cong., 2d Sess.
18-19 (1990).
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The Copyright Office published a Federal Register notice on June
10, 1992, requesting information and inviting public comment on the
moral rights waiver provision in VARA. 57 FR 24659 (1992). In response
to this notice, the Copyright Office received a total of seven
comments.\4\ Although the comments were helpful, most of them were very
brief. At the time of the interim report, VARA had been in effect for
only two years and there were few, if any, measurable effects of the
waiver provision. The comments of the seven parties are summarized in
the interim report, submitted to Congress on December 1, 1992.
\4\ Comments were received from the Nebraska Arts Council;
Professor of Law, John Henry Merryman; the Capital Arts Center/BG-WC
Arts Commission; the General Services Administration; the Committee
for America's Copyright Community; Volunteer Lawyers for the Arts of
Massachusetts, Inc.; and Volunteer Lawyers for the Arts of New York.
II. Current Status of the Copyright Office Study
The results of the interim study demonstrated that obtaining
information from artists on their experience with the waiver provision
for the final report would be a major challenge. The Copyright Office
thus began an extensive outreach program aimed at getting factual
information on the effects of VARA's waiver provision.
To reach individual artists, the Copyright Office developed a
survey questionnaire designed to reveal the effect of VARA waiver
provisions on the visual arts community. The survey was modeled in part
after the ``Volunteer Lawyers for the Arts Visual Artists Rights Act of
1990 Questionnaire'' submitted by the Massachusetts Volunteer Lawyers
for the Arts in response to the June 1992 Federal Register notice.
One goal of the survey was to determine whether waiver of moral
rights provisions are routinely included in art contracts; and, if so,
whether this occurs because of the parties' relative bargaining power
or for other reasons. Another goal of the survey was to ascertain
whether waivers occur only in the context of a written contract, as
required by statute, or whether waivers also occur orally.
Following review of the survey by a group consisting of copyright
experts and representatives of the art community, the Office revised
and distributed the survey questionnaire to hundreds of visual art-
related organizations. These organizations consisted primarily of state
art councils, volunteer lawyers for the arts associations, and art
schools and universities. Altogether, the Copyright Office mailed out
more than 6,800 surveys. The actual number of surveys distributed was
far greater, however, because many of the surveys were duplicated by
the recipient organizations and distributed to still others in the
visual arts community.
III. Preliminary Analysis of VARA Survey
By May 15, 1995, the Copyright Office had received 1063 completed
surveys. Our final report to Congress will include a detailed analysis
of survey results, but a preliminary analysis of 985 surveys received
by mid-April reveals the following data.
A. Knowledge of VARA
Even five years after VARA's enactment, survey results indicated
that educating artists about their new moral rights is perhaps as
critical as the Congressional intent to study the extent to which
artists waive these rights. The survey, therefore, fulfilled an
educational need. Before receiving the survey, 73 percent of all
respondents were aware of moral rights in certain works of visual art.
Fifty-eight percent, however, previously were unaware such rights could
be waived, and sixty-six percent did not know that waiver requires an
express, written agreement. Seventy-nine percent of all respondents
said they have not seen contracts that include a waiver provision.
Eight percent have waived moral rights in a signed contract, but a full
77 percent have not, and five percent said they did not know.
B. Respondent Profile
The majority of responses were from artists. Ninety percent of
respondents believed they were covered by the survey's definition of
``visual artist'' (i.e., one who creates a ``work of visual art'' as
defined by VARA). Of these, 58 percent identified themselves as
painters (an artist could check as many media as applied). Only eight
percent of respondents were not VARA artists: Of these, five percent
created art works not covered by VARA, another two percent were art
professors, and the remaining were others associated with the arts.
Most respondents did not earn a significant income from their art.
More than half have worked under commission, but 68 percent earned less
than $10,000 from their art in an average year. Five percent claimed
income between $25,000-$40,000, and nine percent said their art-related
income exceeded that amount. Roughtly half were represented by a
gallery or agent, but 42 percent had no repression.
C. Willingness to Waive Moral Rights
Forty-four percent of artists indicated they were unwilling to
waive moral rights in the future. Seven percent would waive such
rights; 36 percent did not know whether they would waive these rights,
and 123 artists declined to say.
Of seventy-nine individuals who had waived the right of integrity
or attribution in a signed contract, 42 said they did so to gain
exposure and 37 said they did so to make a sale. Eleven percent had
declined a contract because it included a waiver clause, and 13 percent
had insisted such a clause be struck before signing. Most artists (58%)
did not know whether rejecting a waiver would cost them the contract,
but some (15%) thought it would. Eighty-one percent had never been
pressured to waive moral rights, but six percent had.
IV. Subject Matter To Be Addressed at the Public Hearing
To supplement the information gathered through the survey, the
Copyright Office will hold a public hearing to solicit comments on the
effect of the waiver of moral rights provision in the Visual Artists
Rights Act. We anticipate that the hearing will provide an opportunity
to obtain more information on existing practices relating to waivers of
moral rights in visual art.
The Copyright Office is also interested in studying actual or model
contracts that contain language concerning waiver [[Page 27332]] of
moral rights. We would like to see examples of as many visual art
contracts as possible, especially those with waivers, and would
appreciate any party sending us such contracts.
The Copyright Office specifically invites comments on the following
questions:
Awareness of rights. To what extent are artists aware of VARA and
the rights of integrity and attribution provided by VARA? Has awareness
of VARA increased? Please give examples.
Extent of waiver. Are waiver of moral rights provisions routinely
included in artists' contracts? Do parties that obtain waiver of moral
rights in a contract exercise the waiver or is a waiver secured merely
as an ``insurance policy''? Does waiver vary depending on the nature of
the work? For example, are mobiles and sculptures treated differently
than paintings and prints? Does it vary based on the location of the
work, for example, murals that are part of buildings? What experiences
have artists had with owners of buildings? Does it vary depending on
the purchaser? Does it matter whether the purchaser is a national or
regional institution, an owner of a public or private building, an art
collector or investor? Please give examples where possible.
Contract specifics. What is the economic effect of a waiver in the
course of contract negotiations? Is there any evidence on how much a
waiver is worth--that is, how much more a purchaser would pay if the
artist waived the right? Are there proportionately more waivers given
for artistic works that are included in buildings than for other types
of works? When a waiver is included in a contract, does the contract
specifically identify the work and use for which the waiver applies?
What types of contracts include waivers: contracts for sale of work?
contracts for transfer of copyright ownership? contracts for
commissioned works? contracts that include only a waiver provision? If
a waiver is included in a contract, is that waiver limited in duration?
If limited in duration, what is the typical term of the waiver?
Artists' concerns. What are the factors artists consider when
determining whether to agree to a waiver of moral rights in a contract?
Describe any instances where artists were coerced into waiving their
moral rights. Has VARA had an effect on commission of visual art?
Do artists have unequal bargaining power when dealing with
established galleries and other organizations? If the artist's selling
power (demand for his or her works) or reputation affects or determines
whether or not waiver will be required, how much experience or how well
know does the artist have to be in order to avoid waiver? Give specific
examples, if possible.
Experience in other countries. What types of experiences have
artists had with moral rights abroad? Are artists asked to waive their
moral rights in contracts entered into in foreign countries? If so, in
what countries?
Experience with U.S. law. Should moral rights be waivable? Should
the provisions of the Visual Artists Rights Act be amended or modified
in any way?
The Copyright Office is interested in receiving public comment on
these issues and any other issues relevant to the VARA study.
Dated: May 18, 1995.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 95-12606 Filed 5-22-95; 8:45 am]
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