Contact: Craig D'Ooge (202) 707-9189
March 21, 1996
Copyright Office Issues Report on Waiver of Moral Rights in Visual Artworks
On March 1, Register of Copyrights Marybeth Peters delivered a report to Congress based on a five-year study of the impact of the provisions of the Visual Artists Rights Act of 1990 (VARA) that allow the waiver of moral rights by certain types of artists. Moral rights recognize that a work reflects the personality of the artist and these rights are regarded as personal rather than economic rights. The rights granted under VARA, which are similar to those granted to creators by many other nations, are the rights of attribution and integrity in a narrowly defined group of artworks. The creators of fine arts and exhibition photographs are granted the rights to claim or disclaim authorship in a work, as well as limited rights to prevent distortion, mutilation, or modification of a work after it is sold, for example. In addition, under some circumstances, these artists have the right to prevent destruction of a work that is made part of a building's structure.
In 1990, the provision of such rights under VARA was considered an innovation in the copyright law. The portion of VARA that the Copyright Office was asked to study concerned an artist's ability to waive his or her moral rights in a specific, signed, written agreement among participating parties. When VARA was passed in 1990, Congress was concerned that commercial pressures might unduly influence artists to give away their new-found moral rights and directed the Copyright Office to review the waiver provision.
Although the Register concluded that no legislative action is currently warranted to modify VARA (section 106A of Title 17, United States Code), she did make several observations and one recommendation. The Register concluded that because federal moral rights legislation is in its infancy in this country, and because artists and art buyers are frequently unaware of moral rights, accurate predictions on the impact of VARA's waiver provisions are difficult to make at this time. This is supported by the fact that federal courts in the United States have offered little guidance on the operation and application of VARA to date.
The study notes that the United States provides limited application of VARA rights for artists because many works are created in a work-for-hire situation. Such works are expressly exempted from VARA protection. In addition, many agreements to create works are oral agreements, which are also exempt from VARA protection. Finally, the more than 1,000 surveys returned to the Office reflected a low level of artist awareness about VARA, particularly by those earning less than $10,000 annually from the sale of their art, and those not represented by an agent or gallery.
During the course of the study, the Copyright Office heard testimony from artists' representatives, commercial users, academics, and artists themselves. Research was done into state laws that directly protect artists' rights, and federal laws that indirectly protect artists' rights in their works. The Office also studied statutes and case law regarding moral rights protecting artists and their works in foreign countries. The Office formulated a survey that was sent to 6,800 artists, artists' representatives, art students, and art-related organizations. The survey was designed to elicit facts as to artists' awareness of these moral rights and the effect of waiver provisions contained in the law.
Suggestions for modification of VARA were clear on one point: participants in the study activities, as well as academics whose articles were reviewed by the Copyright Office during the course of the study, strongly indicated that VARA inappropriately permits one artist to waive the moral rights of the other artists in a joint work. The Register noted that Congress may wish to amend the statute to provide that no joint artist may waive another's statutory moral rights without the written consent of each joint artist whose rights would be affected.
The Office will continue to provide information to any member of the public who inquires about VARA rights, and will post VARA information on the Internet. It also encourages the arts community to continue to inform artists of their rights and remedies under the law.
The report, Waiver of Moral Rights in Visual Artworks - Final Report of the Register of Copyrights (Library of Congress, U.S. Copyright Office, March 1996,) will be available from the Government Printing Office after April 1 for $22 by check, GPO Deposit Account, VISA or MasterCard from the Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954; fax: (202) 512-2250, telephone: (202) 512-1800 (Stock Number: S/N 030-002- 00185-3).
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