8. The Moral Rights of the Visual Artist - · PDF file© Simpsons Solicitors Telephone: (61 2) 9247 3473 Suite 1202 Facsimile: (61 2) 9247 3442 135 Macquarie Street [email protected]

© Simpsons Solicitors Telephone: (61 2) 9247 3473Suite 1202 Facsimile: (61 2) 9247 3442135 Macquarie Street [email protected] NSW 2000 Australia

8. The Moral Rights of the Visual Artist

The principles of moral right involve some of the most important issues facing Australian

artists today. But they are widely misunderstood, even by artists. This chapter introduces

the major aspects of the moral right: the right to create, the right to artistic integrity, the

right of disclosure, and the right of attribution. It discusses overseas legislation which has

conferred these sorts of rights upon artists and provides a contractual means by which

artists, hypothetically, may enjoy such protection in Australia.

The motivation for creation may differ from artist to artist and indeed between works of

the same artist, but once the work is complete and ready for its public, it is a matter of

massive concern to all artists that from the moment of delivery, the character, intent and

effect of the work is totally dependent upon the circumstances, will or whim of its new

possessor. As Mark Rothko observed in 1949:

“A picture lives by companionship, expanding and quickening in the eyes of the

observer. It dies by the same token. It is therefore a risky act to send it out into the

world. How often it must be permanently impaired by the eyes of the unfeeling

and the cruelty of the impotent who would extend their affliction universally”: The

Legacy of Mark Rothko (Penguin), p. 27.

The fact is that artists conceive of their own artworks as something superior to mere

chattels (more on a plane with the family dog . . . a knowing, feeling existence, but not

quite up to eating at table). Many non-artists share the “super-chattel” theory and treat

their artworks with care, if not homage. Others don't give a damn. And why should they?

Let us take four examples of art violation and compare them with hypothetical examples

of perhaps analogous outrage.


(1)(a) Dissatisfied with his work, an artist slashes a painting and throws the remnants in

the garbage. Years later the painting appears at auction, reassembled, glued together and

described as being the work of the artist.

(b) During a domestic clean-up a householder discards the rusting remnant of a bicycle. A

child rescues the bike from the heap and after spending weeks doing it up, now attempts

to sell it. The householder objects to his garbage being recycled.

(2)(a) A sculptor wins a competition to design and construct a sculpture for an inner city

public square. After installation there arises controversy over the work and the city

council votes to relocate the sculpture on an alternative site -- one considered highly

inappropriate by the artist.

(b) An architect designs a house and supervises its construction. Some years later the

owner decides to build apartments on the land and transports the house to another block

of land. The architect considers the new site to be inappropriate for the house.

(3)(a) A painter creates a mural featuring nude figures. Although the wall owner initially

likes the work he succumbs to the sneers of his peers and hires another painter to clothe

the subjects. The wall owner refuses the artist permission to remove the signature from

the mural.

(b) A couple retains an interior designer to redecorate their house. They love the effect of

the pink and yellow walls, but their friends start referring to their home as the “Waldorf

Hysteria”. So they hire a tradesman to repaint the walls a more socially acceptable beige.

The designer considers that the change has “completely destroyed the vision” and wishes

to dissociate himself from the project. However when House and Glory magazine features

the house, he is named as the designer.

(4)(a) An artist is commissioned to design and create a 2,000 square yard sculptural

garden. Shortly before completion of the huge task, the company decides to turn the area


into a car park and concretes over the mosaic. A year's work is wasted, the piece is

destroyed, but the artist is paid in full.

(b) A municipal body has a swimming pool designed and built. Because of rising running

costs it is decided to fill the pool with soil and plant a flower clock in it. The swimming

pool company is angry because the pool had been a fine example of their workmanship.

Each of the above art violation cases attracted world-wide controversy, but their

counterparts, if they ever do occur, will be lucky to gain more than a few centimetres in

the local newspaper. One promotes anger and a desire to repair the loss whilst the other

promotes little more than a shrug of the shoulders. Why the distinction? At risk of being

convicted of elitism, perhaps it is because one concerns “the arts” and the other does not.

Fortunately, it is not necessary to rest the case for moral rights upon such ethereal tenets.

To argue for such rights is not to deny that other sections of the community may have

needs. Rather it is a recognition of the piecemeal nature of legal reform and development.

And it is a recognition that if laws are to provide practicable protection they must be quite

specific in their support. Along with authors, composers and practitioners of other arts,

visual artists can demonstrate that, as a group, they have need of particular legal

protection -- and the overseas experience shows that such legislation is both feasible and

valuable.

What are Moral Rights?

The term “moral rights” comes from the French terminology -- “droit moral”. It is

somewhat of a misnomer, but as it is already in common usage it seems futile to search for

a more accurate alternative. Moral, in this sense, has nothing to do with what is good and

proper; it merely distinguishes these non-pecuniary rights from traditional property rights

-- rights which protect pecuniary interests.

This chapter will describe four of these rights:


• the right of integrity: the protection of one's work from alteration, mutilation and

distortion;

• the right of disclosure: the right of the creator to determine when a work is complete

and when it should be revealed to the public;

• the right of attribution: the right to have one's name associated with one's work;

• the right to control the public exhibition of artwork.

These are based on the assumption that the reputation of an artist is directly related to his

or her work, and as all persons have a right to guard their honour and reputation, artists

must have the power to protect their work and thus themselves. Further, it can be argued

that society, in a very real sense, has an interest in the protection of its cultural life and

heritage and that this interest requires that both artist and product be accorded a

professional and aesthetic respect.

A. THE RIGHT OF ARTISTIC INTEGRITY

The right of artistic integrity may be described as the protection of the artist's reasonable

expectation that subsequent owners of an artistic work will ensure that it be maintained in

the manner and form intended by the artist. This includes protection against alteration,

proper maintenance and to a limited extent, exhibition in a manner that is respectful to the

work.

1. Protection from Alteration, Distortion and Mutilation

An artwork may be altered as to its colour, form, content and materials. As the law

presently stands, the owner of a work has an absolute freedom to make such changes, for

such a freedom is concomitant with the traditional legal view of property rights. There are

many examples of the effect of this stance.


(a) Colour

David Smith, an American sculptor of international reputation, created a work entitled

“17 h's” which he carefully painted with six coats of cadmium red and aluminium

powder. The piece was sold to a dealer who in turn sold it to a collector. Thereupon, the

work was taken to a foundry and stripped back to the metal. That's how the collector liked

it, so that's how he had it. Smith was furious but legally powerless. He wrote letters to art

magazines disowning the work (see (1960) 59 (Summer) Art News 6), but this was a mere

gesture. The work still languishes under his famous name, and one day will be sold under

that name.

(b) Form

Bernard Buffet had painted the panels of a refrigerator and donated the work to an

auction for charity. The piece was purchased by a dealer who decided to cut up the fridge

and sell off the separate panels. Buffet heard of the plan and obtained a court order to

prevent the sale of the mutilated work. Had this occurred in Australia, the artist would

have been powerless to prevent the injury to the artwork; nor would he have been able to

prevent the sale of the bastard parts.

A large wall hanging by Mona Hessing was severely damaged by water. The work was

insured and the company agreed to write off the work. Some time later, the insurers put

the ruined piece up for auction. It still bore the artist's name and was offered as an

example of the artist's work.

When Margel Hinder was commissioned to design the “Captain Cook Memorial

Fountain” in Newcastle, she met with enormous problems from the city council. Changes

were made to the work without the permission of the artist, including its manner and

colour of lighting -- an integral part of the sculpture.

Similarly, Robert Woodward's fountain in Chifley Square, Sydney, was improperly and

incompletely installed and has subsequently been planted out by shrubs and other plants.


The council's Parks and Gardens Manager is reported to have commented that the work

“looks fine; probably better than it originally looked”. The artist's opinion, also a matter of

record, is somewhat different.

Annette Bezor was commissioned to create two works by the South Australian

Government. The artist is well known for her treatment of the frame as an important part

of her work and wished to include a clause in the commission contract prohibiting the

removal or alteration of the frame. The commissioner refused to agree in writing to such a

restriction although verbal assurances were given. Subsequently, a high ranking public

servant ordered that the original frames be removed and replaced by more restrained

aluminium ones. The work was repaired only after considerable public pressure had been

exerted. Certainly the artist had little legal recourse for this abuse of her work.

(c) Content

There are many examples of owners interfering with the content of artworks. Perhaps the

most famous is Michelangelo's experience in the Sistine Chapel. The “Rocky Island with

Sirens” case in 1912 also concerned the later addition of clothing, but the artist who

performed the alterations to the German painting has apparently avoided the eternal

infamy that has been accorded Michelangelo's “breeches maker”. There is no procedure

under Australian law by which artists could prevent such abuses of their work.

This was shown when Lawrence Beck had been commissioned to sculpt an environmental

work for the foyer of the National Mutual Building in North Sydney. Some time later the

building owners decided to remodel the foyer and in doing so covered much of the work

with mirrors.

A prominent collector asked the late William Fletcher to alter a painting of a circus scene

by painting out a horse's tail. The artist refused. After his death a book was published on

the artist and during the research for that book it was discovered that the collector had

taken the tail into her own hands. In place of the tail is a white fog.


A well known West Australian artist had a collector who, it was discovered, had bought

half a dozen of his not inexpensive works, covered them with reddish polka dots and

sandpapered his signature off so that she could sign them herself (in the same red paint).

She was delighted that she had been able to match the red of the dots with her newly re-

upholstered couches and could not understand the artist's anger. He had no legal remedy.

Some years ago, the State Gallery of Western Australia was given a painting by Brett

Whiteley entitled “American Dream”. Small portions of the work included

representations of sexual organs and sexual activity. The then chairman of the gallery

board, for reasons that can only be assumed, ordered a member of staff to paint out the

offending sections. Fortunately, the junior conservator charged with the task used

conservational techniques which allowed the work to be restored to its original condition

at a later date.

Sharon Davson was commissioned to paint a work for the foyer of a large office building

at 80 William Street, Sydney. The artist was complimented when the managing director

decided to hang the work in the reception area of his private offices. When the artist went

to photograph the work, she discovered that the company's art director had ordered

picture framers to cut more than 30 centimetres of canvas from the top of the work and

over 20 centimetres from its side, without her knowledge or consent. The carefully

planned composition, perspective and colour balance had been destroyed.

The artist contacted the company and offered to repair the work for a fee or to be allowed

to remove her signature from the work. She received no reply from the company. She had

no legal recourse and the work, still bearing her name, remains in its mutilated and

distorted state.

(d) Material

Terry Fugate Fox is an American artist who creates geometric sculptures from different

metals. They are intended to be continuing works in the sense that the chemical and

molecular interaction of the disparate materials will eventually result in their fusion. One


such piece, entitled “7000 A.D.” consists of two identical trapezoids that are bolted

together. One trapezoid is made of lead, the other of gold. The artist had purchased the

gold, some 50 ounces of it, in the good old days before gold was “gold”. A collector

bought the work for $4,000, but when the price of gold rose sharply, the collector decided

to realise his investment. He gave the piece to a metals dealer who blowtorched the metals

apart. Fortunately the artist heard of this, and was able to find another collector who was

prepared to buy the sculpture for its metal value ($6,500), and the artist was thus able to

restore the piece to its wholeness. (One wonders whether the good samaritan collector, a

Wall Street broker, was tempted to buy himself a blowtorch when gold later hit even

greater heights!)

2. Destruction of Artworks

Very few of the jurisdictions that have enacted moral rights legislation have seen fit to

protect works of art from that ultimate mutilation -- destruction. Even the French, so long

leaders in the field, have stopped short of that. And yet it would seem to be such an

obviously desirable objective.

For example, take the Crimi mural; painted in a church in the United States, the work was

one of the largest frescoes to be painted in the Renaissance manner. Eight years after its

completion the commissioning body decided to paint the walls with two coats of buff over

which was layered a lattice motif. In spite of court battles the work remains covered, if not

destroyed, because the law did not provide the artist with the machinery to protect one of

the most important examples of his life's work.

Another example is the destruction of Graham Sutherland's portrait of Sir Winston

Churchill. The latter's widow is said to have destroyed it because her husband had not

liked it.

And then one can point to the historically important Sydney sculpture by Margel Hinder

which was removed from the front of the Western Insurance Building and cut into 14


pieces. The work was rescued from the scrap-yard by virtue of good luck and the

enormous efforts of individuals. It now has pride of place under the State Offices Building

but its resurrection was not assisted by the law.

The list is a very long one.

To enact a law that would protect artworks from destruction would be to attempt the

ultimate interference with traditional property rights; that is, the right to say whether a

thing should be allowed to exist or not. However, it is difficult to conceptually

differentiate between the alteration and distortion of a work and the destruction of the

piece. It may be argued perhaps that the altered work continues to misrepresent the artist,

whereas the destroyed work does not; but such an argument is demonstrably

misconceived.

The need for such protection is difficult to reconcile with traditional property rights, but

when one is faced with the destruction of a celebrated work of art, one asks rhetorically:

“How could they have destroyed a work like that? Why isn't there a law to stop them?”

3. Maintenance and Conservation

If society deems important the creative expression of its artists, it must ensure that

artworks are maintained in a state that respects their creators' intentions. The need for

maintenance and restoration may arise in many ways: the work may be accidentally

damaged; it may be adversely affected by the climate in which it is exhibited; it may be

vandalised by hammer or spraycan. But whether the damage flows from accident, clime,

or philosophy, doesn't matter. The important thing is that the work says what its creator

intended it to say, and that meaning may be presumed only if the work is maintained in

accordance with the artist's intentions.

Of recent years, the deliberately self-destructive nature of some artwork poses an ethical

dilemma to galleries and collectors: should they allow the piece to, say, decompose, melt


or blow away? Or should they adopt measures which will suspend the destruction so that

a much larger public can view the work? When a gallery purchases a work constructed

from rotting vegetable matter, encases it in glass and vacuum seals it so that its very

method is frustrated, we are presented with more than a delightful irony: it illustrates a

serious intellectual and legal dichotomy between the rights of ownership and the rights of

self-expression.

Conservators

The doctrine of moral rights is significant to conservators for it adds an extra dimension of

responsibility to their professional life. Most codes of ethics emphasise that the primary

duty of the conservator is to the object and its “aesthetic, historic and physical integrity”.

(As well, it must not be overlooked that most conservators will at some time experience

commercial pressure to comply with requests from their owner clients which are at odds

with their ethical obligations.)

Nevertheless, the debate over the introduction of moral rights is not one that should cause

great concern to professional conservators and restorers. Their liabilities are not greatly

expanded by moral rights legislation.

Already, if the owner of a work gives it to a conservator for cleaning and repair or

restoration, the conservator is a bailee for reward. This means that the conservator owes

the owner a duty of care and will be liable if, as a result of negligence, the owner suffers

consequential loss. That remains the case in countries with moral rights legislation.

However, in those countries, the conservator would also owe a duty to the artist. That is,

the artist would have an action against the conservator if the conservator altered,

mutilated or distorted a work.

So that this does not work unfairly on conservators the legislators have taken into account

the exigencies and perils of the profession. For example, the Californian Act specifically

deals with conservation, restoration and framing. If specialists are to be liable under the

Californian Act they must do something that is grossly negligent. Mere negligence is not


enough. Gross negligence is defined in their Act as “the exercise of so slight a degree of

care as to justify the belief that there was an indifference to a particular work of fine art”.

In New York, conservators are expressly excluded from liability under the Act, unless

they are negligent. New York does not provide a definition of negligence and it may be

assumed that “mere” negligence would suffice. This is basically the same standard of care

as is laid down in most conservators' codes of ethics.

Conservators who are reputable and of high professional standard take into account the

intentions of the artist (whether the artist is alive or long dead). Given this, together with

the expected statutory exceptions, Australian moral rights legislation will simply mean

that if the usual professional standards are not met, the conservator may be liable to the

artist as well as to the owner.

B. THE RIGHT OF DISCLOSURE

The right of disclosure gives the artist the absolute right to decide if a work is complete

and whether or not it should be revealed to the public.

One of the most famous cases concerning completeness was that of Georges Rouault. In

1917 he had entered an agreement with his dealer, Ambroise Vollard, by which he

contracted to pass over all of his output in return for a fixed stipend. It was a term of the

agreement that the works would not be considered finished, and thus liable to be

delivered to the dealer, until they had been signed by the artist.

Vollard died in 1939. In his gallery were found 806 unsigned canvases by Rouault. The

artist had a key to the storeroom and from time to time would work on the paintings,

signing them when he was at last happy with them. Naturally enough, the heirs claimed

ownership of the work, but Rouault claimed that they were unfinished and that the sale of

his unfinished work would be detrimental to his professional reputation. Thus he sought

recovery of the paintings.


Under the terms of the contract, it was indisputable that the works were incomplete for

the artist had not signed them. Thus the court held that they should be returned to the

artist because the moral right demanded that the artist alone should determine when a

work is complete, and in this case he had not indicated that completion in the manner

agreed to by the parties.

In addition to determining when a work is complete, the artist should have the right to

decide whether or not it should be released. By way of example, the problem arose when

Camoin, after finishing a number of canvases, decided that they should not be divulged,

slashed them, and threw out the pieces. Some enterprising person gathered up the

remnants, reassembled them and ten years after their rejection by the artist, offered them

for sale. Camoin went to court.

On the basis of the artist's right to determine whether a work should be disclosed at all

(and if so, when), the court found in favour of the artist and ordered the seizing and

destruction of the paintings in accordance with Camoin's original and obvious intention.

The Camoin case is French, but there is precedent for the right of disclosure in our own

legal system. In 1849 Prince Albert brought an action against a would-be exhibitor named

Strange. His Royal Highness had made a number of etchings that were never intended for

public view. By quite improper means, the defendant Strange obtained copies of the

works and sought to exhibit them and sell a descriptive catalogue of the works. Prince

Albert successfully restrained the defendant.

The court held that the publication of the etchings in this way was in violation of trust

(between the artist and the printer) and therefore could be prevented. Furthermore, the

legal right of the plaintiff to preserve the privacy of his unpublished works was so clearly

infringed by the publication of the catalogue as to entitle him to protection by injunction:

Prince Albert v. Strange (1849) 1 Mac. & G. 25; 41 E.R. 1171. Lawyer readers will be aware

that this case is the common law root of the law of confidentiality. It has been developed

in such a way as to provide little.


The right of disclosure is not likely to be introduced into Australia. Its precepts are too far

removed from those of the common law and in any event, its need has perhaps not been

sufficiently established in Australia. However one recent local case provides an interesting

example of its application. An artist and his wife were divorcing and the not uncommon

fight over property was being waged. The artist had retained a large number of works

during his professional life which were sketches, unfinished works, unsuccessful works,

indeed a range of works which were of personal (and perhaps one day historical)

significance but which were never intended by the artist to be sold. In France, they would

remain private but in Australia their public disclosure sale could be enforced and the

artist's professional reputation thus adversely affected.

C. THE RIGHT TO CONTROL THE PUBLIC EXHIBITION OF ARTWORK

The artist's right to control exhibition is one of the most contentious aspects of the moral

right doctrine. Some moral rights proponents would exclude it on the basis that it

interferes too greatly with the owner's property rights. Others argue that how and when a

work is shown, reflects upon the work and its creator.

Certainly, the time, place and manner of display of an artwork is often crucial to the

successful communication of the artist's intention. One can readily understand the anger

of Ron Robertson-Swann who sees his cityscape sculpture repositioned in the mud of a

suburban children's playground. The artistic intention is thereby subverted and the artist's

professional reputation is consequently disparaged. The city council had the legal right to

do whatever it liked with the piece, and indeed it did. Their property rights sanctioned

their decision to exile the work rather than to send it to the National Gallery or the

university that had offered to display it. But perhaps the artist should have had some say

over the positioning of his piece. After all, it is irrevocably associated with his professional

name.


Another example of disparagement by exhibition was the dispute between Carl Andre

and the Whitney Museum in New York. The Whitney held an exhibition entitled “Two

Hundred Years of American Sculpture” and included a work lent by Andre. When the

artist viewed the exhibition he considered that his piece had been placed in a position that

was detrimental to his work and reputation. He withdrew the piece from the exhibition.

Undeterred, the museum simply replaced the work with another by him from their

collection. The artist was powerless to do more than protest because the law had

conferred absolute property rights upon the museum owner.

A more recent example occurred when Richard Goodwin won the Royal Blind Society

commission prize for sculpture. His contract contained a clause which gave him the right

to be consulted in the event of relocation of the work. However, the site for which the

work had been specifically created was not owned by the commissioners but by the New

South Wales Government. Thus when various highly placed politicians decided that they

did not like the piece and its relocation was ordered, the contract was unhelpful because

the State Government was not a party to it.

Although exhibition curators may tremble at the thought of the introduction of such a

right in Australia they may take heart from the fact that the right has not prohibited the

art museums of Europe from mounting successful exhibitions for years; and it is unlikely

to be introduced in the near future in Australia. Such legislation is likely to focus upon

“physical” rather than “contextual” integrity. The latter will remain a matter for

consultation between curator and artist and an uncertain amount of give and take.

That protection as to exhibition is feasible, is shown by a Spanish law which provides that

“the transfer of a work of art does not constitute a transfer . . . of the right of public

exposition of the work . . . unless there is an agreement to the contrary”: Intellectual

Property, 10/1/1879, Art. 9. With such a provision the artist at least has an opportunity to

negotiate the various aspects of the public exhibition of the work.

D. THE RIGHT OF ATTRIBUTION


The introduction of a positive right to proper attribution as the author of the work is one

of the most pressing needs of visual artists.

The right of attribution explicitly gives the artist the power to claim authorship of her or

his work, and declare that a work, purportedly that of the artist, is in fact the work of

another. It also impliedly confers the right to declare that because a work has been altered,

without the approval of the artist, it is no longer to be regarded as the work of the artist.

This is one area of moral rights that enjoys considerable protection from existing

Australian laws. However, there are gaps in the present laws because they are couched in

negative terms; they do not give artists a positive right of attribution, but rather prohibit

various specific actions. Present protection is piecemeal.

1. The Right to Claim Authorship

Problems of this sort are of two kinds: those of non-attribution, and wrongful attribution.

(a) Non-attribution

Under the moral rights doctrine the artist has a right to receive recognition of authorship.

That this reasonable expectation is not realised in Australia can be readily demonstrated

by pointing to the numerous works of public art that bear plaques acknowledging the

donor of the work, the politician who unveiled the work, the local mayor, and even the

town clerk. The name most frequently omitted altogether is that of the creator of the work.

In Australia, attribution (as opposed to wrongful attribution) is not controlled by statute.

It is a matter which can only be ensured by contract. Although it is not always practicable,

the only way that an artist can be sure of obtaining recognition for authorship is to include

that requirement in a contract governing the relationship of the parties. For example,

Vargas, creator of the “Vargas Girls” in Esquire magazine, sued the magazine for not

publishing his signature on the drawings. He argued that he had a right to have it

publicly acknowledged that the work was his, but the court decided otherwise. It decided


that when Vargas had assigned his rights in the drawings to the magazine, he should have

included an attribution clause as a term of the contract. He had not done so and therefore

could not later force the publishers to do more than the contract demanded of them.

Similarly, Samuel Clemens could not force his publisher to produce a short story with

other than a nom de plume attribution. Although he succeeded in obtaining damages on

other grounds the court held that it had no power to “compel or prevent its publication

with or without his name”: Clemens v. Press Publishing Co. 67 Misc. 183; 122 N.Y.S. 206

(Sup. Ct 1910).

Although these are American examples, the approach of the Australian courts would be

comparable. Under a moral right doctrine, however, the artist would not have to insert a

specific clause in a contract to protect his or her rights of authorship. Statute law would

protect the right to claim that authorship.

(b) Wrongful attribution

The Copyright Act 1968 (Cth) now provides artists with considerable protection against

wrongful attribution. Section 190 reads:

“(1) A person is . . . under a duty to the author of a work not to --

(a) insert or affix another person's name in or on the work, or in or on a

reproduction of the work, in such a way as to imply that the other person is the

author of the work;

(b) publish, sell or let for hire, by way of trade offer or expose for sale or hire, or

by way of trade exhibit in public, the work with another person's name so inserted

or affixed, if the offender knows that the other person is not the author of the work;

(c) do any of the acts mentioned in the last preceding paragraph in relation to,

or distribute, reproductions of the work, being reproductions in or on which


another person's name has been so inserted or affixed, if the offender knows that

the other person is not the author of the work . . .”

(See, too, s. 192 as to reproductions.)

This provision gives wide protection against wrongful attribution and is an important, if

solitary, example of statutory protection of a moral right in Australia.

2. The Right to Deny an Attribution

Section 190, quoted above, provides artists with a weapon with which they may assert

their authorship, but it is a power given only to the actual author. What about the artist

who discovers that his or her name has been affixed to the work of another? The statute

gives no protection to the artist whose name and reputation has been so abused.

It may be possible that such cases would come within the legal doctrine known as

“passing off”. This permits a person to bring an action against another who causes

damage by misrepresenting the origin of goods for commercial purpose. Although this is

of considerable usefulness, “passing off” is limited in its application. For example, if the

artist is invited to dinner and discovers over her host's table a work that is purportedly by

her, but which she has never seen before, what can she do? She might attack the work

with her knife and fork or in some other way persuade the owner to remove her name

from the work. But as long as its owner did not attempt to sell the work under that name,

no Australian law could help her. But if a true right of authorship were introduced she

would be able to obtain her deserved remedy.

3. Authorship and Alterations

Again, the Copyright Act provides valuable but incomplete protection to artists whose

works are altered. Section 191 reads:


“Where a work in which copyright subsists has been altered by a person other than

the author of the work, a person is, by virtue of this section, under a duty to the

author of the work not to --

(a) publish, sell or let for hire, or by way of trade offer or expose for sale or hire,

the work so altered, as being the unaltered work of the author; or

(b) publish, sell or let for hire, or by way of trade offer or expose for sale or hire,

a reproduction of the work as so altered as being a reproduction of the unaltered

work of the author, if, to his knowledge, it is not the unaltered work or a

reproduction of the unaltered work, as the case may be, of the author.”

The language may be convoluted but the protection thus given artists is important. For

example, if the Bernard Buffet “Refrigerator case” arose in Australia, the vendor of the

dismembered artwork would have to describe the sale items as “sections” or perhaps

“pieces” of “The Refrigerator”. If the panels were not so described, Buffet could obtain an

injunction to prevent the sale and seek damages. However, this example also illustrates an

enormous shortcoming in the section. It does not really protect the integrity of the

artwork, and it only protects the artist's reputation of authorship in a limited way. It is,

however, better than nothing, and in the protection it provides to prospective purchasers

it is a valuable piece of consumer protection legislation.

One further weakness of the legislation is its failure to include “public exhibition” as one

of the uses giving rise to the duty of proper description. While it is certainly important to

ensure that altered works are so described when published, sold or let for hire, it is surely

vital to the artist's reputation of authorship that works on public exhibition that have been

altered, are clearly described as altered works. To revert to the Bernard Buffet example, if

one of the metal panels were on permanent display in, say, the State Gallery where

thousands of people would see it, should the artist not have the right to ensure that the

viewing public is aware that the exhibit, purportedly representative of his work, has in

fact been altered by someone other than the artist?


E. MORAL RIGHTS LEGISLATION

There has been considerable agitation for the introduction of moral rights legislation in

Australia for more than a decade. The first concrete sign of effect was the establishment in

1984 of the Copyright Law Review Committee by the Federal Government. The

committee's report was handed down in January 1988. Its members were divided on the

need for and appropriateness of moral rights legislation in Australia. The majority (of one)

argued against the introduction of moral rights: many of its reasons were, at best,

misconceived. At least as far as the visual arts are concerned their reasoning and examples

used demonstrated little knowledge or understanding of the visual arts environment. The

minority view provides far more cogent reasoning and its arguments illustrate the

demonstrable weakness of the majority view.

The committee's deliberations were not restricted to the visual arts but rather, dealt with

all of the arts (including film), and it may be that the arguments of special interest groups

in areas outside the visual arts swayed the majority in its view: see Copyright Law Review

Committee, Report On Moral Rights, January 1988, AGPS, Canberra.

When eventually, Australia does introduce moral rights legislation it is hoped that at least

the right of integrity and the right of authorship will be provided. These are the urgently

needed rights. It is also to be hoped that the legislature has the courage to make them

inalienable and imprescribable so that artists, who so often have such poor bargaining

power, are not forced to waive their rights by contract. (There could perhaps be

exceptions for advertising or trade uses, but the merit of this is arguable. Rather, it may be

preferable to provide an exception for “employee artists”.)

Australia is a signatory of the Berne Convention, an international charter providing

reciprocal copyright protection between member nations. Article 6 bis of that Convention

(1971 Paris revision), is as follows:


“(1) Independently of the author's economic rights, and even after the transfer of

the said rights, the author shall have the right to claim authorship of the work and

to object to any distortion, mutilation or other modification of, or other derogatory

action in relation to, the said work, which would be prejudicial to his honour or

reputation.

(2) The rights granted to the author in accordance with the preceding paragraph

shall, after his death, be maintained, at least until the expiry of the economic rights,

and shall be exercisable by the persons or institutions authorised by the legislation

of the country where protection is claimed. However, those countries whose

legislation, at the moment of their ratification of or accession to this Act, does not

provide for the protection after the death of the author of all the rights set out in the

preceding paragraph may provide that some of these rights may, after his death,

cease to be maintained.

(3)The means of redress for safeguarding the rights granted by this Article shall be

governed by the legislation of the country where protection is claimed.”

Article 6 bis has interesting and important features:

(1) It recognises that each piece of an artist's work affects that artist's reputation.

(2) Therefore, any interference with the artwork may also have the consequence of

interfering with the reputation of the artist. All professional persons need some

protection against such danger to their livelihood.

(3) The Article tacitly recognises that artists are and traditionally have been in an

inferior bargaining position and therefore require legislative assistance to achieve

the measure of self-protection that stronger groups can obtain by private contract.

(4) It only provides a power to object. After all the artist may approve of the alteration,

or simply not care. The clause does not absolutely forbid interference with the work


by anyone other than the artist, rather it gives the artist the right to prevent

interferences that he or she considers unacceptable, or if the work has been

irreparably altered, to obtain an award of damages to compensate for any damage

to reputation that might have been suffered.

(5) The creator of a work of art should be able to claim authorship, to say: “You may

own this piece, but you must recognise and permit others to recognise that I am its

creator!” It should be noticed that the clause does not explicitly provide that an

artist may disown a work that is falsely attributed, but one may consider that to be

implicit.

Although a signatory to the Convention, Australia has never enacted legislation to give

effect to this Article -- in spite of the fact that 70 or so other jurisdictions have seen fit to

enact moral rights legislation.

1. The Californian and New York Legislation

The Californian legislation provides an interesting example of one statutory resolution of

the moral rights problem. This Act prohibits the “physical defacement, mutilation,

alteration or destruction of a work of fine art” and gives the artist the right to claim (or

disclaim) authorship of a work.

This approach may be compared with that of the New York State legislation which does

not protect the work itself but rather, seeks to protect the reputation of the artist by

prohibiting the physical display or publication of a work that has been altered, mutilated

or distorted.

The Californian approach seeks to protect the reputation of the artist by forbidding

interference with the work itself whereas the New York approach is to allow any

alteration to be made so long as the altered work is never publicly exhibited or published.

(Thus the Californian approach tackles both rationales for moral rights: the protection of

the cultural heritage and protection of the artist's reputation. The New York one deals


only with the issue of reputation and indeed, given that the altered work would no longer

be suitable or available for public exhibition, one might well say that the long term

reputation of the artist is nevertheless deleteriously affected.)

Both jurisdictions restrict protection to the visual arts but California has adopted a narrow

definition of fine art which excludes prints, photographs and works created for

commercial use. New York protects prints and photographs so long as they are limited

editions of less than 300 and includes commercial art within its ambit.

California restricts protection to works of “recognisable quality”. New York does not.

In brief, these two jurisdictions have adopted very different approaches to meet the same

needs.

THE CALIFORNIA ART PRESERVATION ACT

(California Civil Code s. 987)

1987. Preservation of works of art

(a) Legislative findings and declaration

The Legislature hereby finds and declares that the physical alteration or destruction of

fine art, which is an expression of the artist's personality, is detrimental to the artist's

reputation, and artists therefore have an interest in protecting their works of fine art

against such alteration or destruction; and that there is also a public interest in preserving

the integrity of cultural and artistic creations.

(b) Definitions

As used in this section:

(1) “Artist” means the individual or individuals who create a work of fine art.

(2) “Fine art” means an original painting, sculpture or drawing of recognized quality,

but shall not include work prepared under contract for commercial use by its purchaser.


(3) “Person” means an individual, partnership, corporation, association or other

group, however organized.

(4) “Frame” means to prepare, or cause to be prepared, a work of fine art for display in

a manner customarily considered to be appropriate for a work of fine art in the particular

medium.

(5) “Restore” means to return, or cause to be returned, a deteriorated or damaged

work of fine art as nearly as is feasible to its original state or condition, in accordance with

prevailing standards.

(6) “Conserve” means to preserve, or cause to be preserved, a work of fine art by

retarding or preventing deterioration or damage through appropriate treatment in

accordance with prevailing standards in order to maintain the structural integrity to the

fullest extent possible in an unchanging state.

(c) Mutilation, alteration or destruction of a work

(1) No person, except an artist who owns and possesses a work of fine art which the artist

has created, shall intentionally commit, or authorise the intentional commission of, any

physical defacement, mutilation, alteration or destruction of a work of fine art.

(2) In addition to the prohibitions contained in paragraph (1), no person who frames,

conserves, or restores a work of fine art shall commit, or authorise the commission of, any

physical defacement, mutilation, alteration, or destruction of a work of fine art by any act

constituting gross negligence. For purposes of this section, the term “gross negligence”

shall mean the exercise of so slight a degree of care as to justify the belief that there was an

indifference to the particular work of fine art.

(d) Authorship


The artist shall retain at all times the right to claim authorship, or, for just and valid

reason, to disclaim authorship of his or her work of fine art.

(e) Remedies

To effectuate the rights created by this section, the artist may commence an action to

recover or obtain any of the following:

(1) Injunctive relief.

(2) Actual damages.

(3) Punitive damages. In the event that punitive damages are awarded, the court shall,

in its discretion, select an organization or organizations engaged in charitable or

educational activities involving the fine arts in California to receive such damages.

(4) Reasonable attorneys' and expert witness fees.

(5) Any other relief which the court deems proper.

(f) Determination of recognised quality

In determining whether a work of fine art is of recognized quality, the trier of fact shall

rely on the opinions of artists, art dealers, collectors of fine art, curators of art museums,

and other persons involved with the creation or marketing of fine art.

(g) Rights and duties

The rights and duties created under this section:

(1) Shall, with respect to the artist, or if any artist is deceased, his heir, legatee,

or personal representative, exist until the 50th anniversary of the death of such

artist.

(2) Shall exist in addition to any other rights and duties which may now or in

the future be applicable.

(3) Except as provided in paragraph (1) of subdivision (h), may not be waived

except by an instrument in writing expressly so providing which is signed by the

artist.

(h) Removal from building; waiver


(1) If a work of fine art cannot be removed from a building without substantial

physical defacement, mutilation, alteration, or destruction of such work, the rights

and duties created under this section, unless expressly reserved by an instrument

in writing signed by the owner of such building and properly recorded, shall be

deemed waived. Such instrument, if properly recorded, shall be binding on

subsequent owners of such building.

(2) If the owner of a building wishes to remove a work of fine art which is a part

of such building but which can be removed from the building without substantial

harm to such fine art, the rights and duties created under this section shall apply

unless the owner has diligently attempted without success to notify the artist, or, if

the artist is deceased, his heir, legatee, or personal representative, in writing of his

intended action affecting the work of fine art, or unless he did provide notice and

that person failed within 90 days either to remove the work or to pay for its

removal. If such work is removed at the expense of the artist, his heir, legatee, or

personal representative, title to such fine art shall pass to that person.

(3) Nothing in this subdivision shall affect the rights of authorship created in

subdivision (d) of this section.

(i) Limitation of notices

No action may be maintained to enforce any liability under this section unless brought

within three years of the act complained of or one year after discovery of such act,

whichever is longer.

(j) Operative date

This section shall become operative on January 1, 1980, and shall apply to claims based on

proscribed acts occurring on or after that date to works of fine art whenever created.

(k) Severability

If any provision of this section or the application thereof to any person or circumstance is

held invalid for any reason, such invalidity shall not affect any other provisions or


applications of this section which can be effected without the invalid provision or

application, and to this end the provisions of this section are severable.

This statute does not purport to protect all of the moral rights. Essentially, it is restricted

to providing protection for artworks against mutilation, alteration and destruction, and

conferring upon the artist the right to claim authorship. Both of these subjects are of

similar importance in Australia.

The legislators chose not to include a right of disclosure. In contrast, the Germans have

included the following clause:

“Article 12. The Right of Dissemination –

(1) The author shall have the right to determine whether and how his work is to be

disseminated.

(2)The right of publicly communicating the contents of his work or a description

thereof is reserved to the author, provided that neither the work nor its essence, nor

a description thereof has previously been publicly disseminated with his consent”:

Law of 9 September 1965: Contents of Copyright.

Another interesting feature of the Californian Act is that (with one exception) the rights

conferred are not waivable. This recognises the weak bargaining position of most artists

and prevents purchasers and commissioners from demanding waiver of these rights. This

does not mean that, in practice, the artist cannot waive them; it simply means that any

agreement to that effect, made between the parties, will not be enforceable. If the artist

chooses not to enforce the statutory rights, that is a private matter.

ARTISTS' AUTHORSHIP ACT 1983 (NEW YORK)

ARTICLE 14-A -- ARTISTS' AUTHORSHIP RIGHTS

Sec.14.51. Definitions.

14.53. Public display, publication and reproduction of works of fine art


14.55. Artists' authorship rights.

14.57. imitations of applicability.

14.59. Relief.

14.51.Definitions

Whenever used in this article, except where the context clearly requires otherwise, the

terms listed below shall have the following meanings:

1. “Artist” means the creator of a work of fine art;

2. “Conservation” means acts taken to correct deterioration and alteration and acts taken

to prevent, stop, or retard deterioration;

3. “Person” means an individual, partnership, corporation, association or other group,

however organized;

4. “Reproduction” means a copy, in any medium, of a work of fine art, that is displayed or

published under circumstances that, reasonably construed, evinces an intent that it be

taken as a representation of a work of fine art as created by the artist;

5. “Work of fine art” means any original work of visual or graphic art of any medium

which includes, but is not limited to, the following: painting; drawing; print; photographic

print or sculpture of a limited edition of no more than three hundred copies; provided

however, that “work of fine art” shall not include sequential imagery such as that in

motion pictures.

Added L.1983, c. 994, 3.

14.53. Public display, publication and reproduction of works of fine art

Except as limited by section 14.57 of this article, no person other than the artist or a person

acting with the artist's consent shall knowingly display in a place accessible to the public

or publish a work of fine art of that artist or a reproduction thereof in an altered, defaced,

mutilated or modified form if the work is displayed, published or reproduced as being the


work of the artist, or under circumstances under which it would reasonably be regarded

as being the work of the artist, and damage to the artist's reputation is reasonably likely to

result therefrom.

Added L.1983, c. 994, 3.

14.55. Artists' authorship rights

1. Except as limited by section 14.57 of this article, the artist shall retain at all times

the right to claim authorship, or, for just and valid reason, to disclaim authorship of his or

her work of fine art. The right to claim authorship shall include the right of the artist to

have his or her name appear on or in connection with the work of fine art as the artist. The

right to disclaim authorship shall include the right of the artist to prevent his or her name

from appearing on or in connection with the work of fine art as the artist. Just and valid

reason for disclaiming authorship shall include that the work of fine art has been altered,

defaced, mutilated or modified other than by the artist, without the artist's consent, and

damage to the artist's reputation is reasonably likely to result or has resulted therefrom.

2. The rights created by this section shall exist in addition to any other rights and

duties which may now or in the future be applicable.

Added L.1983, c. 994, 3.

14.57. Limitations of applicability

1. Alteration, defacement, mutilation or modification of a work of fine art resulting

from the passage of time or the inherent nature of the materials will not by itself create a

violation of section 14.53 of this article or a right to disclaim authorship under subdivision

one of section 14.55 of this article; provided such alteration, defacement, mutilation or

modification was not the result of gross negligence in maintaining or protecting the work

of fine art.


2. In the case of a reproduction, a change that is an ordinary result of the medium of

reproduction does not by itself create a violation of section 14.53 of this article or a right to

disclaim authorship under subdivision one of section 14.55 of this article.

3. Conservation shall not constitute an alteration, defacement, mutilation or

modification within the meaning of this article, unless the conservation work can be

shown to be negligent.

4. This article shall not apply to work prepared under contract for advertising or

trade use unless the contract so provides.

5. The provisions of this article shall apply only to works of fine art knowingly

displayed in a place accessible to the public, published or reproduced in this state.

Added L.1983, c. 994, 3.

14.59. Relief

1. An artist aggrieved under section 14.53 or section 14.55 of this article shall have a

cause of action for legal and injunctive relief.

2. No action may be maintained to enforce any liability under this article unless

brought within three years of the act complained of or one year after the constructive

discovery of such act, whichever is longer.

Added L.1983, c. 994, 3.

2. The British Reforms

In late 1987 the British Government introduced an important Bill into the House of Lords.

At the time of writing it has not been passed into law but its passage is expected in 1988.

Unlike the Americans, the British have chosen not to introduce moral rights by enacting a


separate statute but rather, will introduce it by an amendment to its present Copyright

Act.

The following summary of the moral rights aspects of the legislation is taken from an

article by Henry Lydiate, “Copyright and Moral Rights: New Legislation” [1988]

(December/January) Art Monthly (U.K.) 42. The extract is reproduced here with kind

permission.

“The essential features of the scheme (which also, incidentally, covers writers,

musicians and film makers) for visual artists, are these.

Protected works will include all visual artwork, and works of artistic craftsmanship

and of architecture, so long as such work is `original' i.e. original in expression (not

thought), manifesting the fruits of the author's own skill and labour -- not of some

earlier author; slavish copies are out, as are works which manifest substantial

features of another, however skilful their execution.

The creator of any such original work is given moral rights as author, whether or

not the work has been commissioned or executed whilst an employee, student or

apprentice. There are five rights:

Identification as author: this will give creators the right to be identified as author,

whenever the work is published commercially, exhibited in public, or included in a

TV programme or film. This new right will considerably strengthen artists'

bargaining power in initial contractual negotiations for commissions and terms of

employment. In addition, artists whose works are exhibited in public, especially

sculptors and artists/craftspeople whose works are permanently sited in or on

buildings and in spaces open to the public, will now be able to insist on their

identification as author.

No unjustified modification: creators will be given the right not to suffer unjustified

modification whenever the work is published commercially, exhibited in public, or


included in a TV programme or film. Modification means any addition to, deletion

from, alteration to, or adaptation of, the artwork; such distortions will be

unjustified if they are unreasonable and prejudice the honour and reputation of the

author. This new right will enable artists to check distortions, before and after the

event, and whether or not they own copyright; only artist employees cannot

intervene if their boss has approved any modification. It even enables artists whose

works are exhibited in public, especially those sited in or on buildings, and in

public spaces, to insist that distortions (including the ravages of time and the

elements, as well as of vandalism) be checked and corrected. As has been outlined

many times in this column, there is a common myth amongst commercial

publishers, their reproduction technicians, and fine artists alike, that it is not an

infringement of copyright to take an artist's original image, modify it slightly, and

then reproduce it; this new moral right not to suffer unjustified modification will,

once and for all, kill that myth: such modifications will, under the new law, be a

moral right infringement and continue to be a copyright infringement.

No false attribution as original author: this is not a new right, it exists in law today,

and gives creators the right not to be named as authors of works they did not

create, whenever such works are shown to the public, through exhibition or

publication of copies including film and TV programmes.

No false attribution as author of altered work: this is also not a new right, it exists

in law today, and is the right of any artist whose work has been altered without

consent, to stop being named as author whenever anyone deals with such work or

copies of such work by way of trade.

No false attribution as author of a copy of work: again, this is not a new right, it

exists today and will continue to enable artists to prevent dealers falsely trading in

copies of their works purporting to have been authorised by them.

All five rights will last for the author's lifetime and for a period after death: the first

two, the right to be identified and not to suffer unjustified modification, will


continue for 50 years beyond the author's death and will be capable of being

bequeathed in artists' wills. The last three, rights concerning false attributions, will

continue for 20 years beyond the author's death but will not be capable of being

bequeathed in an artist's will (which means that only the deceased artist's personal

representatives will be capable of taking action to enforce such rights).

Exceptionally, in the case of photographs, all five rights will only last for 50 years

from the making of the image.

Although the current draft Bill will enable artists to waive these new rights (a

provision currently the subject of great consternation and much lobbying of

Government on behalf of artists, before it becomes law), none of the moral rights

will be capable of being transferred or assigned by the artist to anyone else during

his/her lifetime. This latter facet of the new law will strengthen the real value of

this legislation to all artists in the U.K. When negotiating contracts or commissions,

exhibitions, employment and copyright permissions, authors will henceforth have

an absolute right to insist that the contractual terms and conditions properly

provide for their personal involvement in approving the quality, method and

manner of their work being seen by the public. It will be for the would-be

commissioner, exhibiting body, employer, or copyright licensee, to initiate

discussions about waiver and to offer incentives enough to the artist to agree to

waive any or all of their moral rights. Moreover, even if an artist's waiving of these

rights is successfully achieved -- at a price -- such waiver will equally be capable of

being revoked by the artist -- perhaps also for a price -- and, in any event, many of

the abuses which artists will be able to correct under the new law, are matters

which they will have had no opportunity of foreseeing or any right to negotiate at

any stage after their original work left their possession.”

F. PROTECTION OF MORAL RIGHTS BY CONTRACT

In the absence of legislation, the only means of protecting moral rights is by means of

contract. Again it must be observed that most artists are hardly in a position to bargain for


such contentious things. However, for those fortunate or determined enough, the

following clauses may be included in the agreement of sale:

Alteration or Destruction. The purchaser agrees to not intentionally destroy modify or

alter the work.

Repairs. The purchaser agrees to maintain the work in good repair. It is further agreed

that if the work is altered damaged or in need of any restoration:

(i) the artist will be consulted before any restoration is commenced;

(ii) the artist will be given first opportunity to do the restoration; and

(iii) if the artist does the work he/she will receive reasonable payment.

A more difficult question is that posed by the need to obtain a loan of the work for the

purpose of exhibition. Many purchasers will not agree to such a “concession”. However, if

it is essential that this right be protected (e.g. if the artist is contemplating a

“retrospective”), the following type of clause could also be inserted in the purchase

agreement:

Loan for Exhibition. The purchaser agrees that the artist may borrow the work for the

purpose of exhibition for up to forty days every five years, on the following conditions:

(i) the artist must apply written notice of intent 90 days prior to the opening of

the exhibition;

(ii) the artist must insure the work for the reasonable market value of the work;

(iii) the artist must prepay the costs of transportation.

It must be noted that these clauses would only provide protection as against the initial

purchaser. If the work was later sold to another collector these terms would not be

implied into the second contract for sale and thus the artist could not enforce the terms

against subsequent purchasers. The only way of protecting oneself against this is to adopt

the clumsy “Transfer and Ratification Agreement” mechanism proposed in the “Projansky


contract” . However this is very cumbersome and has met with enormous buyer

resistance in the United States.

Documents

8. The Moral Rights of the Visual Artist - · PDF file© Simpsons Solicitors Telephone: (61 2) 9247 3473 Suite 1202 Facsimile: (61 2) 9247 3442 135 Macquarie Street [email protected]