Text: H.R.2690 — 101st Congress (1989-1990)All Information (Except Text)

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Union Calendar No. 311
101st CONGRESS
2d Session
H. R. 2690
[Report No. 101-514]
A BILL
To amend title 17, United States Code, to provide certain rights of attribution
and integrity to authors of works of visual art.
June 1, 1990
Reported with an amendment, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
HR 2690 RH
Union Calendar No. 311
101st CONGRESS
2d Session
 H. R. 2690
[Report No. 101-514]
To amend title 17, United States Code, to provide certain rights of attribution
and integrity to authors of works of visual art.
IN THE HOUSE OF REPRESENTATIVES
June 20, 1989
Mr. KASTENMEIER (for himself, Mr. MARKEY, and Mr. BERMAN ) introduced the
following bill; which was referred to the Committee on the Judiciary
June 1, 1990
Additional sponsors: Mr. BATES, Mr. MOORHEAD, Mr. COBLE, Mr. WEISS, Mr. HUGHES,
and Mr. DeFazio
June 1, 1990
Reported with an amendment, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on June 20, 1989]
A BILL
To amend title 17, United States Code, to provide certain rights of attribution
and integrity to authors of works of visual art.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `Visual Artists Rights Act of 1990'.
SEC. 2. WORK OF VISUAL ART DEFINED.
  Section 101 of title 17, United States Code, is amended by inserting after
  the paragraph defining `widow' the following:
  `A `work of visual art' is--
  `(1) a painting, drawing, print, or sculpture, existing in a single
  copy, in a limited edition of 200 copies or fewer that are signed and
  consecutively numbered by the author, 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 author and bear the signature or
  other identifying mark of the author; or
  `(2) a still photographic image produced for exhibition purposes only,
  existing in a single copy that is signed by the author, or in a limited
  edition of 200 copies or fewer that are signed and consecutively numbered
  by the author.
A work of visual art does not include--
  `(A)(i) any poster, map, globe, chart, technical drawing, diagram, model,
  applied art, motion picture or other audiovisual work, book, magazine,
  newspaper, periodical, data base, electronic information service, electronic
  publication, or similar publication;
  `(ii) any merchandising item or advertising, promotional, descriptive,
  covering, or packaging material or container;
  `(iii) any portion or part of any item described in clause (i) or (ii);
  `(B) any work made for hire; or
  `(C) any work not subject to copyright protection under this title.'.
SEC. 3. RIGHTS OF ATTRIBUTION AND INTEGRITY.
  (a) RIGHTS OF ATTRIBUTION AND INTEGRITY-  Chapter 1 of title 17, United
  States Code, is amended by inserting after section 106 the following
  new section:
`Sec. 106A. Rights of certain authors to attribution and integrity
  `(a) RIGHTS OF ATTRIBUTION AND INTEGRITY- Subject to section 107 and
  independent of the exclusive rights provided in section 106, the author
  of a work of visual art--
  `(1) shall have the right--
  `(A) to claim authorship of that work, and
  `(B) to prevent the use of his or her name as the author of any work of
  visual art which he or she did not create;
  `(2) shall have the right to prevent the use of his or her name as the
  author of the work of visual art in the event of a distortion, mutilation,
  or other modification of the work as described in paragraph (3); and
  `(3) subject to the limitations set forth in section 113(d), shall have
  the right to prevent any destruction, distortion, mutilation, or other
  modification of that work which would be prejudicial to his or her honor or
  reputation, and which is the result of an intentional or negligent act or
  omission with respect to that work, and any such destruction, distortion,
  mutilation, or modification of that work is a violation of that right.
  `(b) SCOPE AND EXERCISE OF RIGHTS- Only the author of a work of visual art
  has the rights conferred by subsection (a) in that work, whether or not
  the author is the copyright owner. The authors of a joint work of visual
  art are coowners of the rights conferred by subsection (a) in that work.
  `(c) EXCEPTIONS- (1) The modification of a work of visual art which is a
  result of the passage of time or the inherent nature of the materials is
  not a destruction, distortion, mutilation, or other modification described
  in subsection (a)(3) unless the modification was the result of gross
  negligence in maintaining or protecting the work.
  `(2) The modification of a work of visual art which is the result of
  conservation, or of the presentation, including lighting and placement, of
  the work is not a destruction, distortion, mutilation, or other modification
  described in subsection (a)(3) unless the modification is caused by gross
  negligence.
  `(3) The rights described in paragraphs (1) and (2) of subsection (a) shall
  not apply to any reproduction, depiction, portrayal, or other use of a work
  in, upon, or in any connection with any item described in subparagraph (A)
  or (B) of the definition of `work of visual art' in section 101, and any
  such reproduction, depiction, portrayal, or other use of a work is not a
  destruction, distortion, mutilation, or other modification described in
  paragraph (3) of subsection (a).
  `(d) DURATION OF RIGHTS- (1) With respect to works of visual art created
  on or after the effective date set forth in section 9(a) of the Visual
  Artists Rights Act of 1990, the rights conferred by subsection (a) shall
  endure for a term consisting of the life of the author and fifty years
  after the author's death.
  `(2) With respect to works of visual art created before the effective date
  set forth in section 9(a) of the Visual Artists Rights Act of 1990, but
  copyright in which has not, as of such effective date, been transferred
  from the author or, if the author is deceased, from the person or persons
  to whom copyright in such work passes by bequest of the author or by the
  applicable laws of intestate succession, the rights conferred by subsection
  (a) shall be coextensive with, and shall expire at the same time as,
  the rights conferred by section 106.
  `(3) In the case of a joint work prepared by two or more authors, the
  rights conferred by subsection (a) shall endure for a term consisting
  of the life of the last surviving author and fifty years after such last
  surviving author's death.
  `(4) All terms of the rights conferred by subsection (a) run to the end
  of the calendar year in which they would otherwise expire.
  `(e) TRANSFER AND WAIVER- (1) Except as provided in paragraph (2), the rights
  conferred by subsection (a) may not be transferred, but those rights may be
  waived if the author expressly agrees to such waiver in a written instrument
  signed by the author. Such instrument shall specifically identify the work,
  and uses of that work, to which the waiver applies, and the waiver shall
  apply only to the work and uses so identified. In the case of a joint work
  prepared by two or more authors, a waiver of rights under this paragraph
  made by one such author waives such rights for all such authors.
  `(2) After the death of an author, the rights conferred by subsection
  (a) on the author, and the authority of the author to waive those rights
  under paragraph (1) of this subsection, shall vest in the person to whom
  such rights pass by bequest of the author or by the applicable laws of
  intestate succession.
  `(3) Ownership of the rights conferred by subsection (a) with respect
  to a work of visual art is distinct from ownership of any copy of that
  work, or of a copyright or any exclusive right under a copyright in that
  work. Transfer of ownership of any copy of a work of visual art, or of a
  copyright or any exclusive right under a copyright, shall not constitute a
  waiver of the rights conferred by subsection (a). Except as may otherwise
  be agreed by the author in a written instrument signed by the author,
  a waiver of the rights conferred by subsection (a) with respect to a work
  of visual art shall not constitute a transfer of ownership of any copy of
  that work, or of ownership of a copyright or of any exclusive right under
  a copyright in that work.'.
  (b) CONFORMING AMENDMENT- The table of sections at the beginning of chapter
  1 of title 17, United States Code, is amended by inserting after the item
  relating to section 106 the following new item:
`106A. Rights of certain authors to attribution and integrity.'.
SEC. 4. REMOVAL OF WORKS OF VISUAL ART FROM BUILDINGS.
  Section 113 of title 17, United States Code, is amended by adding at the
  end thereof the following:
  `(d)(1) In a case in which--
  `(A) a work of visual art has been incorporated in or made part of a
  building in such a way that removing the work from the building will cause
  the destruction, distortion, mutilation, or other modification of the work
  as described in section 106A(a)(3), and
  `(B) the author or, if the author is deceased, the person described
  in section 106A(e)(2), consented to the installation of the work in the
  building either before the effective date set forth in section 9(a) of the
  Visual Artists Rights Act of 1990, or in a written instrument executed on
  or after such effective date that is signed by the owner of the building
  and the author or such person and that specifies that installation of
  the work may subject the work to destruction, distortion, mutilation,
  or other modification, by reason of its removal,
then the rights conferred by paragraphs (2) and (3) of section 106A(a)
shall not apply.
  `(2) If the owner of a building wishes to remove a work of visual art which
  is a part of such building and which can be removed from the building
  without the destruction, distortion, mutilation, or other modification
  of the work as described in section 106A(a)(3), the author's rights under
  paragraphs (2) and (3) of section 106A(a) shall apply unless--
  `(A) the owner has made a diligent, good faith attempt without success to
  notify the author or, if the author is deceased, the person described in
  section 106A(e)(2), of the owner's intended action affecting the work of
  visual art, or
  `(B) the owner did provide such notice in writing and the person so notified
  failed, within 90 days after receiving such notice, either to remove the
  work or to pay for its removal.
For purposes of subparagraph (A), an owner shall be presumed to have made a
diligent, good faith attempt to send notice if the owner sent such notice by
registered mail to the author or, if the author is deceased, to the person
described in section 106A(e)(2), at the most recent address, of the author
or such person, that was recorded with the Register of Copyrights pursuant
to paragraph (3). If the work is removed at the expense of the author or
the person described in section 106A(e)(2), title to that copy of the work
shall be deemed to be in the author or such person, as the case may be.
  `(3) The Register of Copyrights shall establish a system of records
  whereby any author of a work of visual art that has been incorporated in
  or made part of a building, or the person described in section 106A(e)(2)
  with respect to that work, may record their identities and addresses with
  the Copyright Office. The Register shall also establish procedures under
  which any such author or person may update the information so recorded,
  and procedures under which owners of buildings may record with the Copyright
  Office evidence of their efforts to comply with this subsection.'.
SEC. 5. PREEMPTION.
  Section 301 of title 17, United States Code, is amended by adding at the
  end the following:
  `(f)(1) On or after the effective date set forth in section 9(a) of
  the Visual Artists Rights Act of 1990, all legal or equitable rights
  that are equivalent to any of the rights conferred by section 106A with
  respect to works of visual art to which the rights conferred by section
  106A apply are governed exclusively by section 106A and section 113(d)
  and the provisions of this title relating to such sections. Thereafter,
  no person is entitled to any such right or equivalent right in any work
  of visual art under the common law or statutes of any State.
  `(2) Nothing in paragraph (1) annuls or limits any rights or remedies
  under the common law or statutes of any State with respect to--
  `(A) any cause of action from undertakings commenced before the effective
  date set forth in section 9(a) of the Visual Artists Rights Act of 1990; or
  `(B) activities violating legal or equitable rights that are not equivalent
  to any of the rights conferred by section 106A with respect to works of
  visual art.'.
SEC. 6. INFRINGEMENT ACTIONS.
  (a) IN GENERAL- Section 501(a) of title 17, United States Code, is amended--
  (1) by inserting after `118' the following: `or of the author as provided
  in section 106A(a)'; and
  (2) by striking out `copyright.' and inserting in lieu thereof `copyright
  or right of the author, as the case may be. For purposes of this chapter
  (other than section 506), any reference to copyright shall be deemed to
  include the rights conferred by section 106A(a).'.
  (b) EXCLUSION OF CRIMINAL PENALTIES- Section 506 of title 17, United States
  Code, is amended by adding at the end thereof the following:
  `(f) RIGHTS OF ATTRIBUTION AND INTEGRITY- Nothing in this section applies
  to infringement of the rights conferred by section 106A(a).'.
  (c) REGISTRATION NOT A PREREQUISITE TO SUIT AND CERTAIN REMEDIES- (1)
  Section 411(a) of title 17, United States Code, is amended in the first
  sentence by inserting after `United States' the following: `and an action
  brought for a violation of the rights of the author under section 106A(a)'.
  (2) Section 412 of title 17, United States Code, is amended by inserting
  `an action brought for a violation of the rights of the author under
  section 106A(a) or' after `other than'.
SEC. 7. FAIR USE.
  Section 107 of title 17, United States Code, is amended by striking out
  `section 106' and inserting in lieu thereof `sections 106 and 106A'.
SEC. 8. STUDIES BY COPYRIGHT OFFICE.
  (a) STUDY ON WAIVER OF RIGHTS PROVISION-
  (1) STUDY- The Register of Copyrights shall conduct a study on the extent
  to which rights conferred by subsection (a) of section 106A of title 17,
  United States Code, have been waived under subsection (e)(1) of such section.
  (2) REPORT TO CONGRESS- Not later than 2 years after the date of the
  enactment of this Act, the Register of Copyrights shall submit to the
  Congress a report on the progress of the study conducted under paragraph
  (1). Not later than 5 years after such date of enactment, the Register of
  Copyrights shall submit to the Congress a final report on the results of
  the study conducted under paragraph (1), and any recommendations that the
  Register may have as a result of the study.
  (b) STUDY ON RESALE ROYALTIES-
  (1) NATURE OF STUDY- The Register of Copyrights, in consultation with the
  Chair of the National Endowment for the Arts, shall conduct a study on
  the feasibility of implementing--
  (A) a requirement that, after the first sale of a work of art, a royalty
  on any resale of the work, consisting of a percentage of the price, be
  paid to the author of the work; and
  (B) other possible requirements that would achieve the objective of allowing
  an author of a work of art to share monetarily in the enhanced value of
  that work.
  (2) GROUPS TO BE CONSULTED- The study under paragraph (1) shall be conducted
  in consultation with other appropriate departments and agencies of the
  United States, foreign governments, and groups involved in the creation,
  exhibition, dissemination, and preservation of works of art, including
  artists, art dealers, collectors of fine art, and curators of art museums.
  (3) REPORT TO CONGRESS- Not later than 18 months after the date of the
  enactment of this Act, the Register of Copyrights shall submit to the
  Congress a report containing the results of the study conducted under
  this subsection.
SEC. 9. EFFECTIVE DATE.
  (a) IN GENERAL- Subject to subsection (b) and except as provided in
  subsection (c), this Act and the amendments made by this Act take effect
  6 months after the date of the enactment of this Act.
  (b) APPLICABILITY- The rights created by section 106A of title 17, United
  States Code, shall apply to--
  (1) works created before the effective date set forth in subsection (a)
  but copyright in which has not, as of such effective date, been transferred
  from the author or, if the author is deceased, from the person or persons
  to whom copyright in such work passes by bequest of the author or by the
  applicable laws of intestate succession, and
  (2) works created on or after such effective date,
but shall not apply to any destruction, distortion, mutilation, or other
modification (as described in section 106A(a)(3) of such title) of any work
which occurred before such effective date.
  (c) SECTION 8- Section 8 takes effect on the date of the enactment of
  this Act.

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