[Federal Register Volume 60, Number 99 (Tuesday, May 23, 1995)]
[Notices]
[Pages 27329-27332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12606]



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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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