Visual Artists Rights Act of 1990

==TITLE VI — VISUAL ARTISTS RIGHTS==

Sec. 601. Short Title.

This title may be cited as the ``Visual Artists Rights Act of 1990´´.

Sec. 602. 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 200 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. 603. 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 which would be prejudicial to his or her honor or reputation; and

``(3) subject to the limitations set forth in section 113(d), shall have the right—

``(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

``(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction 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 distortion, mutilation, or other modification described in subsection (a)(3)(A).

``(2) The modification of a work of visual art which is the result of conservation, or of the public 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 610(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.

``(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, 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.

``(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) 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) 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. 604. 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 consented to the installation of the work in the building either before the effective date set forth in section 610(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 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 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 at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author.

``(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, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author 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. 605. 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 610(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 610(a) of the Visual Artists Rights Act of 1990;

``(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; or

``(C) activities violating legal or equitable rights which extend beyond the life of the author.´´.

Sec. 606. 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. 607. 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. 608. 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. 609. First Amendment Application.

This title does not authorize any governmental entity to take any action or enforce restrictions prohibited by the First Amendment to the United States Constitution.

Sec. 610. Effective Date.

(a) IN GENERAL.—

Subject to subsection (b) and except as provided in subsection (c), this title and the amendments made by this title 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 title to which has not, as of such effective date, been transferred from the author, 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 608.—

Section 608 takes effect on the date of the enactment of this Act.