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Do Not Fold, Mutilate, or Trash

Your Calder would be nice in blue? Cap that spray can; new law defines artists' rights

KENNETH SNELSON is an artist with an ``ancient horror story'' to tell. In the early '60s, he was asked to produce two giant aluminum and stainless steel sculptures for the Tower of Light pavilion at the 1964 New York World's Fair. Awarded a $35,000 commission by a collective of 40 power-and-light companies, Snelson spent nearly two years immersed in the work.

He had designed his masterpiece of gleaming tubes and cables ``to last forever,'' he recalls, but someone else had a different plan.

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After the fair, a man who had purchased the sculptures from the commissioners called Mr. Snelson with a question: ``I deal in scrap metals, you see, and I hoped maybe you'd remember the type of aluminum alloy.''

Snelson went numb. His first important public commission had been chopped into chunks to be sold as scrap.

Snelson's case is just one of a multitude of examples in which artists have seen their works mistreated. For this reason, Congress passed an amendment, signed by the President on Dec. 1, giving visual artists the legal ``moral right'' to prevent destruction, mutilation, or modification of their work that would harm their reputation.

Just as playwrights, novelists, and composers claim authorship of their works under standard copyright law, painters, sculptors, and photographers now have the right to claim authorship no matter who ``owns'' the actual piece of art. They can also disclaim authorship if someone, for instance, decides to spray paint over an original work and attributes it to the artist.

Though narrow in scope, the law creates a uniform national standard where only spotty inconsistent state laws had existed before. It also puts the United States on equal footing with some 70 other nations, where such protections for artists have been on the books for years.

The Visual Artists' Rights Act, passed by Congress Oct. 28, represents major progress ``in terms of our government acknowledging the importance of the arts,'' says James Minden, president of National Artists Equity Association, a trade group based in Washington, D.C., which has lobbied for the legislation since 1984.

The legislation - whose final wording had to be delicately crafted to avoid trampling upon sacrosanct property rights - is a tremendous victory for the arts community, still reeling from the rancor surrounding the National Endowment for the Arts (NEA) and the funding of controversial art.

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``It's an interesting juxtaposition,'' says Edward Able, executive director of the American Association of Museums, which supported the measure. ``Broad criticism of the arts on one hand, and support of artists' rights on the other.''

The amendment, championed by Sen. Edward M. Kennedy (D) and Rep. Edward J. Markey (D), both of Massachusetts, and Rep. Robert W. Kastenmeier (D) of Wisconsin, was tacked on at the last minute to a bill creating 85 federal judgeships. It affords protection only to original paintings, drawings, limited-edition prints, sculpture, and photographs produced for exhibition purposes. Motion pictures, books, magazines, and posters are specifically excluded.

Careless destruction of art is nothing new, says Snelson, in a phone interview. ``I'm sure this has been going on since the Renaissance,'' he says. Most of it is done out of sheer ignorance. The corporations which commissioned Snelson's sculptures ``could have given me a telephone call, but they didn't even do that,'' he says. ``I'm not talking about any kind of wickedness here. It's just stupidity.''

Large public sculptures and murals are the most frequent candidates for abuse. In 1960, Alexander Calder's prize-winning, giant mobile called ``Pittsburgh,'' hung in the Pittsburgh airport, was painted over in green and gold (the county's colors) without Mr. Calder's knowledge. In 1934, a mural by Diego Rivera that Nelson Rockefeller had commissioned for New York's RCA Building was completely demolished when the artist, a staunch Communist, refused to remove a likeness of Lenin on it.

Under US copyright law, visual artists have been protected with regard to controlling reproductions of their work, but ``once they sold a work of art, technically speaking, the owner could paint over it,'' says John Koegel, general counsel to Artists Equity. Now artists can file suit to prevent the alteration or destruction of their work, or recover damages resulting from harm already done.

In European and Scandinavian countries, Mr. Koegel says, establishing ``moral rights'' is seen as a way of preserving cultural history. ``Artists are a much more important part of their body of laws,'' he says. The aim of the US law, however, is not so much to protect American artistic heritage, but to safe-guard the personal rights of artists.

Snelson testified in Congress that his sculptures, had they survived, would today bring 25 times their original price at auction. Still, he feels, ``that isn't really the point at all.'' People need to appreciate art for art's sake, he says. The new law ``makes the person who is buying the thing recognize, `What do you know? We've got a piece of art here!'''

While no one group came out in vehement opposition to ``moral rights'' per se, the motion picture industry was more than a little nervous, says attorney Koegel, since it had already faced controversy over the process of colorization of black-and-white films, which some directors believe violates their artistic vision.

``The film industry doesn't like the idea of expanding rights anywhere,'' says Koegel. ``They were concerned that this [privilege for visual artists] would open the door for directors to be more vocal in their claim that they should receive the right to prevent colorization.''

A spokeswoman for the Motion Picture Industry Association said they supported the amendment, but declined further comment.

Several concessions were made, says Mr. Minden, which helped squeeze the amendment through: Protection is not retroactive, and covers visual artists only during their lifetime. In addition, the concept of awarding ``resale royalties'' to artists was dropped. This would have allowed an artist to benefit financially every time a work was resold. (The bill stipulates, however, that a feasibility study on this issue is to be conducted by the Copyright Office and the NEA.)

Despite the concessions, Minden says the new amendment ``doesn't preempt those state laws which are farther reaching.'' California, for example, has a 10-year-old ``moral rights'' law that extends artists' protection 50 years after their death. Ten other states have related laws.

In Massachusetts, Jamaica Plain artist Elaine Yoneoka received compensation and an apology in October from the Concord-Carlisle High School, which destroyed a ceramic mural she created in 1986 while an artist-in-residence there. She filed suit under the Massachusetts Art Preservation Act, which, despite its ``vague terminology,'' helped her win the case, she says. ``It was too big of a loss,'' she says of the mural. ``It wasn't like a piece of paper that got thrown into the garbage. It took over three months of my time.''

The crux of the matter, she explains, is the notion ``which says, `Well, I own it, so I can do what I want with it.' But art is fundamentally unique,'' she says. ``People don't understand the connection between the art and the artist.''

With the new act, that may begin to change.

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