Testimony presented on waiver of moral rights under the Visual Artists Rights Act.
Hearing held Wednesday, June 21, 1995, 10:00 am, at the Library of Congress, US Copyright Office:
I am Carol Pulin, Director of the American Print Alliance and formerly Curator of Fine Prints here at the Library of Congress. I earned my PhD in art history and criticism from the University of Texas at Austin. Thank you for the opportunity to present some information and offer suggestions about aspects of the waiver of moral rights under the Visual Artists Rights Act of 1990.
The American Print Alliance is a 501(c)(3) nonprofit consortium of printmakers' councils in the United States and Canada. We represent about 3,000 artists who are members of our ten councils. Our journal, Contemporary Impressions, publishes critical literature about prints and related arts, like paperworks and artists' books; besides artists, it reaches collectors, curators in museums and universities, fine arts publishers, gallery owners and others in the art world.
Printmakers seem to think that they suffer disproportionately, compared to the other visual arts, from copyright infringements and VARA moral rights infringements. It's easy to understand why. In the past, it was common for prints to be traced and for unauthorized copies of an artist's image to be printed from woodblocks cut using the tracing. A recent exhibition of old master prints at the National Gallery of Art highlighted that kind of borrowing, and followed historical convention in politely labeling the new prints as "reverse copies." Today, thanks to advances in photo copying and electronic scanning, it is even easier to copy images from a piece of paper and reprint them in ways not intended by the original artist. It also seems to be psychologically easy, because the miscreants like the general public often think (or want to think) of prints as reproductions anyway, as if the fact of being multiples makes them less original, or less protected by copyright and VARA, or less valuable to the artist. While many cases of borrowing are simple copyright infringement, increasingly they are also examples of VARA rights infringement, because the borrower can so easily modify the image before reprinting it with or without the original artist's name. In cases in which the artist did not give permission for the copy at all, he or she also, obviously, did not waive VARA rights. Even in cases in which artists gave permission for their works to be reproduced, as illustration for a catalogue or on a poster, for example, artists tell me that they are increasingly surprised not pleasantly to find that their images have been modified.
In both of these types of cases, i.e. whether or not the artists have granted copyright permission for a reproduction, the artists have not been asked to waive their VARA rights of attribution and integrity. Most of the artists do not know that these are VARA rights, and so they rail about the lack of "copyright protection" and (mistakenly) see issues of integrity in the same light. The most frequent examples of modification I hear about are over printing and cropping. With or without copyright permission, it is an infringement of the artist's VARA rights to print the title of a catalogue across the image of that artist's work reproduced on the cover, or to use only a detail rather than the entire image. Even when it is clear that copyright permission has been granted by the artist, as a curator and arts administrator, I am still unable to discern whether or not an artist has granted a waiver of VARA rights.
I think it is notable that when I asked artists for specific examples, they were quite willing to tell me about them but were unwilling to grant permission to show them at these hearings. The artists explained that once it became known that they were not prosecuting cases of infringement (of copyright and/or VARA rights), that designers and advertising artists would appropriate their images even more often.
Yet the artists felt that they could not afford to prosecute for two reasons. The first is economic: artists cannot file in small claims court for damages for VARA infringements, and few artists can afford the legal representation that might win a civil suit against a publisher or advertising agency. Second is the fear of retaliation: the artists are afraid that, if their complaints are anything more than a request that this not be done again, their images would not be selected for reproduction at all, losing the publicity needed to attract collectors to buy the original works. And I have heard of some cases in which artists, whether asked if they minded the over printing of a cover title or finding out that this was a feature of the design, protested; in every case that I know about, the artist was given the option of withdrawing the protest or having some other artist's work chosen for that cover. In addition, artists who are not well known frequently said that they are at a distinct disadvantage compared to famous artists, because commercial artists know that they would get in trouble for changing an image identified as by Jasper Johns or Jennifer Bartlett or Robert Rauschenberg, for example, but otherwise seem to think that they know as much as the artist about what would be the best proportions for an image or whether it would be "stronger" to show a detail or perhaps just the central figure.
I offer two suggestions. Neither will completely solve the issue of commercial artists or publishers or advertising agencies purposely appropriating and changing an image without a waiver of VARA rights on the assumption that they will not be caught and/or not be prosecuted. However, the suggestions may help limit such occurrences, so that the artist more often enjoys those rights which are supposed to be protected by this Act.
The first suggestion is education. The recently completed survey conducted by the Copyright Office is certainly a start, but short articles in plain English (and Spanish and other languages widely spoken in the United States) could be placed in the arts sections of newspapers all across the country. The places where people read art reviews, notices of exhibitions, etc., are the places where this information would reach a target audience. A simple information sheet about copyright and VARA could be distributed to professors who teach fine arts classes at colleges, universities and art schools, with permission to copy and distribute it to all their BFA and MFA students and to their colleagues. At least as important as educating the artists about their rights is educating the people usually responsible for violating VARA rights; most often those are commercial artists and designers, advertising agencies, and publishers. To reach them, I would suggest articles and notices in design newsletters and their professional organization newsletters as well as distribution of that information sheet to applied art departments in schools. And, although there may be some resistance from the manufacturers and distributors, it would be very useful to be able to enclose an information sheet with each computer software package that is likely to be used for modifications of pre existing images (e.g. Photoshop and Matisse) and even with disks of images which are sold "copyright free" to point out that VARA rights exist.
My second suggestion is to require, or at least make it a standard convention, to indicate when an artist has given a VARA waiver, much as we now indicate when an image is protected by copyright. It would soon become quite noticeable when that waiver has not been obtained, and would at least add some pressure towards compliance with the law. Perhaps I am an idealist, but I think that the public is fairly astute and, once they know about the arrogance of those designers who modify an artist's image, they will help to control misuse.
Thank you, Carol Pulin
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