On Thu, 2 Oct 1997, Elizabeth H. Sillin <esillin[_at_]kraken.mvnet.wnec.edu> wrote:
>
> I am currently researching VARA's 106(3)(B) language regarding the
> protection of the destruction of works of "recognized stature" -
> wondering where this language came from, and why it was included, and
> whether it is a unique legal concept in terms of requiring the fact
> finder to make such a determination pprior to deciding whether the
> rights in VARA arise. Do you have any suggestions as to good sources
> for information on this topic?
As I understand it, the "recognized stature" language represented a last-minute compromise between Sens. Kennedy and Hatch (that famous Odd Couple of the Senate) on how to deal with destruction. The problem comes initially from the hybrid (that, I believe, is the polite term) source of VARA in the New York and Massachusetts/California models of moral rights law, which in the one case emphasizes damage to reputation and in the other adopts the "art preservation" model. The original drafts of VARA adopted the Massachusetts/California model and made destruction of any "serious" art a per se offense, and there is still residual language that suggests this approach, but the rest of VARA looks more like the New York law. Therefore, to appease those who were worried that someone could be liable for destroying a child's scribble, the destruction language was made narrower so that it was clear that only works that clearly would implicate the artist's reputation were protected.
This, of course, aggravates the already complicated pre-emption conundrum, since the question remains open whether a state law that protects non-"recognized" art from destruction survives passage of VARA.
Send me (off list) a postal address and I'll send you a reprint, too. Gee, if I'd thought I could get rid of this whole box of them like this, I'd have found an excuse to post on this subject long ago!
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