Waiver of Moral Rights in Visual Artworks. Executive Summary

Introduction

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 6b 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 6b, 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.

The survey sought to educate and to elicit relevant 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.

***10/24/96***

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