Artists' Moral Rights
This Artists' Moral Rights section is part of the Egress Art Law Resource Center project. For a general overall description of the project click here
--- International Law
--- United Kingdom
--- United States
The Right of Disclosure
The Right of Withdrawal
The Paternity Right
--- United Kingdom
--- United States
The Integrity Right
--- United Kingdom
--- United States
The Right to Prevent the Destruction of the Artwork
--- United Kingdom
Moral rights are rights of authorship which artists and other authors have over certain types of work, including artistic, literary and musical works. They protect an author’s non-economic interests in their work independently of copyright and unlike copyright cannot, be transferred or sold. Moral rights relate to an author’s control over the use of their work and derive from the personal connection between an author and their creation.
The rationale for moral rights is that the author of a work projects an aspect of their individual ‘personality’ into its creation and that thereafter an indissoluble bond arises between the author and their work.1 It is argued that this bond survives the transfer or sale of the work and the author’s repute can be damaged by certain (primarily public) uses of the work, including treatments of the original work itself and in some situations, copies of it. Examples of the types of harm which moral rights seek to prevent include failing to attribute an artist as being the author of a work that is publicly exhibited or exhibiting the artwork in a mutilated or damaged form.
The two main moral rights are the ‘paternity’ right (the right to be attributed as the author of a work) and the ‘integrity’ right (the right to control the form of the work). These rights are enshrined in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (1928)(The ‘Berne Convention’):
“Independently of the author’s economic rights, and even after the transfer of 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 shall be prejudicial to his honour or reputation”. (For document click here and here)
Moral rights developed in France in the 19th century and are now recognised in most countries, including in Berne Union member states. Their recognition, however, varies significantly between countries. Historically, civil law countries such as France and Germany have offered far stronger protection than common law countries, such as the United Kingdom and USA, which have tended to emphasize the economic nature of the rights connected with copyright. Civil law jurisdictions, including France, also recognise additional moral rights e.g. the author’s right to determine when a work should be made public for the first time.
Moral rights derive from statute and are an important source of legal protection for artists. They can potentially trump the rights of third parties, including rights provided by contract and rights over property; for example, the rights of the owner of the artwork to perform certain actions in relation to the artwork. Moral rights particularly in civil law countries can also potentially limit the freedom of expression of others to interpret, perform and contextualise works if this does not accord with the intention of the author who created the work or with their heirs.
Moral rights resonate with many of the legitimate claims of artists to control their work after sale to collectors or to museums, in order that the artwork be conserved and exhibited in accordance with the artist’s intentions. In doing so, moral rights recognise a different aspect to the relationship between an artist and their work: that the artwork is not just a commodity that can be sold like any other asset.
The question of who controls the artwork after its sale or transfer can be a contentious one. In the 20thand 21st centuries there have been numerous disputes between artists and private collectors and museums arising out of the problem of how artworks should be exhibited and maintained. This applies, for example, to Minimalist and Installation art where notions such as site-specificity and the placement of the artwork have assumed greater significance. The artists Carl Andre, Donald Judd and Richard Serra have all been involved in high-profile disputes with collectors.2
Since the 1960s, artists have also been more conscious of their rights. The unauthorised inclusion of a work by the artist, Vassilakis Takis in the exhibition, “The Machine As Seen at the End of the Mechanical Age” curated by Pontus Hulten in MOMA, New York, 1965, led to large-scale demonstrations by artists outside MOMA and the eventual emergence of the Art Workers’ Coalition (1969) in the US.3 Strong recognition of rights of authorship, including the artist’s right to consent to the public exhibition of the artwork, to repair the artwork (if damaged) and to prevent its destruction, were included in the model ‘Artist’s Contract’ devised by Seth Siegelaub and lawyer Bob Projanksy (1971).4 (For document click here)
The problem of artists not having adequate statutory protection of their authorial rights and having to rely upon the law of contract as an alternative source of protection is illustrated by the removal of Richard Serra’s site-specific sculpture, ‘Tilted Arc’ (1981) from Federal Plaza, New York.5 Serra had created ‘Tilted Arc’ under a commission agreement with the US federal government. It consisted of a wall of cortex iron steel (measuring 120 feet long and 12 feet high) in Federal Plaza, Manhattan. Bisecting Federal Plaza, Tilted Arc was conceived specifically for that site. Serra’s sculpture met with hostility by some local residents and workers, leading to a public hearing in 1985 which (narrowly) led to its removal. In Serra v US General Services Administration (1985),6 Serra brought a claim against the GSA to prevent the removal of ‘Tilted Arc’ arguing that to remove his site-specific sculpture would be to destroy the work and that its removal constituted a violation of his constitutional right to freedom of expression as well as his contractual rights. Serra was unsuccessful, principally because the Court deemed that Serra’s artistic expression had been transferred to the US Government and that the decision to re-locate Tilted Arc was a neutral determination made to further significant governmental interests.
The removal of Serra’s sculpture predates the implementation of the Visual Artists Rights Act(17 U.S.C. §106A)(‘VARA’) into US law in 1991 (For document click here). Had VARA been implemented before Serra created ‘Tilted Arc’ it is likely that he would have been able to prevent its removal and destruction. The question, however, of how far moral rights can always protect artists is also open to question. This is seen for example, in the failure of the Swiss artist, Christoph Büchel in 2007,7 to persuade the US courts that the exhibition by Mass MoCA (a large public warehouse space in Boston which commissions and exhibits often complex and large-scale artworks) of an unfinished and disclaimed installation-commission, ‘Training Ground For Democracy" (partially modified by Mass MoCA); would amount to a false attribution of authorship and would be prejudicial to his honour and reputation. Here the Massachusetts Federal Court held that if Mass MoCA exhibited the work with a public disclaimer, Büchel’s moral rights would not be infringed. However, the US First Circuit Court of Appeals in January 2010, overruled this decision holding that a “distortion, mutilation or other modification” applies to unfinished works like Büchel’s installation as well as to finished works and that Büchel’s moral rights had been, accordingly, infringed.8 (For document click here).
Moral rights are also open to criticism. One conceptual difficulty is that they appear to embody Romantic conceptions of authorship, i.e. that the author is a solitary creative genius who imparts his or her personality on the work in isolation from the rest of society. Some critics9 have argued that moral rights present an unrealistic image of the process of authorship, failing to take into account the collaborative and inter-textual nature of authorship.
A further difficulty is that moral rights are potentially wide-ranging in their scope, inhibiting the rights of other creators to comment upon and make use of particular works, for example, by creating works that parody the original or interpret it in novel and challenging ways. In this way, strong moral rights potentially canconflict with freedom of expression and with the development of art. They can potentially prevent other artists from making use of particular works and images, for example, to criticize or subvert their meaning. They can also potentially prevent museums and galleries from exhibiting artworks not just in a specific manner but also in a particular exhibition context alongside other artworks, if this does not accord with an artist’s wishes.
A central issue which lies at the heart of moral rights and differentiates the treatment of moral rights in civil law jurisdictions from common law jurisdictions is the way in which harm to an author’s interests or reputation is to be judged. This can be seen particularly in relation to the ‘integrity right’. Civil law countries like France have tended to adopt a subjective approach (i.e. the view of the author concerned) in determining infringement.10 By contrast, common law countries have adopted a more objective approach, taking into consideration whether it would be ‘reasonable’ for an author to object and taking into account the evidence of experts. The question of how infringement of moral rights is to be judged is of great significance in evaluating how moral rights are to be balanced with other rights, including freedom of expression, for the more the subjectivity of the author is put into question, the greater the likelihood that this will be to the detriment of competing rights, unless these rights are specifically catered for through national legislation, e.g. the parody defence in French copyright law.
Moral rights emerged in France in the 19th century ("droit morale") and in Germany. Moral rights were first incorporated into the Berne Convention in 1928 in the form of Article 6bis (see above). However, the conditions imposed under Article 6bis for member states to incorporate moral rights into their legislation have been weak. Article 6(2) of the Berne Convention, for example, leaves it open to Union countries to determine the conditions under which the rights are to be exercised. The UK and the US did not incorporate Article 6bis into national legislation until relatively recently and this implementation has still been criticised as being a half-measure.11
International copyright treaties adopted after the Berne Convention have also failed to refer to moral rights. The Universal Copyright Convention of 1952, for example, lacks any moral rights provisions and the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’)(1994) explicitly excludes moral rights12 (For document click here). Despite harmonising many aspects of copyright protection over the past two decades the European Union has also excluded moral rights from harmonisation (see Recital 20 of the EC Term Directive 2008 for example)13 (For document click here). Although Article 6bis of the Berne Convention was incorporated by reference into the World Intellectual Property Organisation (“WIPO”) Copyright Treaty (1996), failure of a country to give effect to Article 6bis does not represent a ground of objection to the World Trade Organisation.
Authors’ moral rights are protected under French copyright law, Articles L121-1 to L121- 8 of the French Intellectual Property Code, 1992 (For document click here) and apply to all works of authorship (except computer programs) and therefore to all (copyright protected) artistic works. Performers also benefit from moral rights under French law (L.212-2). The following moral rights for authors are recognised under French law:
- the right of respect for name, qualification and the work (L.121-1)
- the right of divulging the work (L.121-2)
- the right of reconsideration or withdrawal (L.121-4)
- the right to gather articles and speeches into a collection and to publish them in some form (L.121-8)
The right of respect for name, qualification and the work (L.121-1) embraces includes the rights of:
- attribution (droit de paternité) in respect of an author’s name and qualification; and
- respect of the work (droit au respect de l’integré de l’oeuvre)
In France, the right of respect is deemed to be perpetual (i.e. it arises automatically and is not limited to the duration of copyright), inalienable (i.e. it is personal, belonging to the author or to his or her heirs and cannot be sold, transferred or waived) and inviolable (i.e. it cannot be lost through non-use).
Perpetual – the right can be invoked by an author’s heirs (see the case of Millet’s son who was able to prevent publication of a reproduction of his father’s painting, ‘The Angelus',14 Tribunal civil de la Seine, 20 May 1911, Amm. 1911.1.271.
The notion that the right is perpetual means that it can be potentially exercised beyond the copyright term. However, in 2007, the Cour de Cassation15 overturned a ruling by the Paris Court of Appeals (2004)16 that the publication of two sequels to Victor Hugo’s ‘Les Miserables’, a work in the public domain, violated Hugo’s moral right of integrity which was invoked by one of his heirs. The notion that the right to respect is inalienable means that it cannot be waived in advance under a contract in contrast to the UK or US jurisdictions; see the case of Barbelivien v Agence Business (2007). When a claimant brings an action for moral rights’ infringement under French law, he or she does not have the burden of proving prejudice to honour or reputation, merely that the act in question is infringing. Remedies for infringement of moral rights under French law include damages (which can be significant) as well as a permanent injunction to prevent further infringing use.
Moral rights were first properly incorporated into UK law through their introduction in the Copyright, Designs and Patents Act 1988 ("CDPA") (For document click here). The CDPA protects authors’ moral rights in relation to copyright protected, artistic, dramatic, literary, musical and film works. However, in contrast to French law it protects four types of moral right:
- the right of attribution: the right to be named when a work is communicated or copied (s.77 CDPA)
- the right to object to false attribution: the right not to be named as the author of a work one did not create (s.84 CDPA)
- the integrity right: the right to object to derogatory treatments of the work (s.80 CDPA)
- the right to privacy of certain photographs and films (s.85 CDPA).
Infringement of moral rights under UK law is actionable as a breach of statutory duty. Damages and an injunction to prevent further infringement of moral rights may be awarded by the courts.
The rights of integrity and attribution last for the length of copyright. However, the right to object to false attribution continues to last for only 20 years after the author’s death. After the author’s death, moral rights may be exercised by the author’s heirs. Whilst moral rights are inalienable under the CDPA, the attribution and integrity rights can be waived by authors (through a signed written instrument) in relation to existing and future works. Furthermore, in order to be protected, the attribution right must be asserted by an author in accordance with certain formalities under s.78. This again contrasts with French law.
Moral rights are protected under US law in the Visual Artists Rights Act 1990 (‘VARA’), which amends the US Copyright Act (1976)(‘CA’), 17. U.S.C. S106 A. In contrast to most other moral rights’ regimes, the US under VARA grants moral rights only to authors of ‘works of visual art’. In addition to VARA, some US states also have their own moral rights’ legislation, most notably the state of California through the California Art Preservation Act 1979 (For document click here) which secures the paternity and integrity rights for artists.17 It has been held that VARA pre-empts the rights granted under local state law where the state statute grants rights ‘equivalent’ to those under VARA, see: Board of Managers v. City of New York (2003).18
‘Works of visual art’ under VARA are defined more narrowly than under US copyright law. The definition is limited to only paintings, drawings, prints and sculpture and photographic images produced for exhibition purposes. Each artwork must exist in single form or in an edition of no more than 200 copies that are signed and consecutively numbered by the artist (or in the case of sculpture which bears from the artist an identifying mark). VARA excludes from protection: posters, maps, charts, technical drawings, diagrams, models, applied art, motion pictures and other audio-visual works.
The moral rights recognised under VARA (s106A(1)-(3) are:
- the right of attribution: the right to be named when a work is communicated or copied;
- the right to object to false attribution: the right not to be named as the author of a work one did not create;
- the right to prevent the use of one’s name on a work that has been distorted, mutilated or modified;
- the integrity right: the right to object to derogatory treatments of the work;
- the right to prevent “works of recognized stature” from being intentionally or grossly negligently destroyed.
The duration of moral rights under VARA is the same as the copyright term for works created before 1991 (i.e. the lifetime of the author plus seventy years), though artists who created artworks prior to 1991 do not benefit from the right to prevent their destruction. For artworks created after 1991, moral rights last for the lifetime of the artist only. Registration of moral rights is not required under VARA.
An artist’s remedies for infringement of his or her moral rights are the same as those available under the 1976 US Copyright Act, including the right to damages, injunctions, destruction, etc.
VARA permits artists to waive their moral rights by written agreement (s106A)(e)(1), an element which weakens their effectiveness. Moral rights also do not apply for artists whose works are ‘made for hire’ or during the course of an employment relationship.
3. Comparison of Moral Rights
The Right of Disclosure
Under French law (L.121-2), the artist has the sole right to determine when and how to make his or her work public and can be exercised by the artist’s heirs. This right prevails over any contractual obligations the artist might otherwise have (though not in all publishing contracts: L.132-4). The right was established in Lord Eden v Whistler (1894).19 In this case, the Cour de Cassation held that the artist, James McNeill Abbot Whistler, who had been commissioned by the claimant, Lord Eden, to paint a portrait of his wife, Lady Eden, was not required to perform a commissioning contract and deliver the portrait to Lord Eden. However, the court did rule that Whistler must pay Lord Eden damages in the form of refunding the commission price to Lord Eden. The dispute had arisen because Whistler claimed to be dissatisfied with the work and did not wish to complete the painting or deliver it to Lord Eden. Indeed he painted out Lady Eden’s face!20 This decision reflects the French view that whilst the right of disclosure may interfere with contractual relations, it is an absolute right and prevails over contractual relations. The right is also recognised in Germany and other civil law jurisdictions but not in the UK or in the US.
The Right of Withdrawal
This right (L.121-4) permits an artist to withdraw a work from publication or to modify it even after the sale and transfer of copyright on the basis that there has been a substantive change in the author’s personal convictions. The right is subject to the artist paying an indemnity to those who have been assigned property and intellectual property rights in the work by the artist. The right leads to practical difficulties and few cases in France have addressed it. The right is primarily an example of symbolic legislation.
THE PATERNITY RIGHT
France – Paternity Right
The paternity right (L.121-1) encompasses three main elements:
(i) the right of attribution: this allows an artist to be recognized by name of the author of his or her work, or, if the artist wishes to publish anonymously, to be credited anonymously. In France, the right has been interpreted broadly so that an artist’s name must appear on all copies of the work, as well as on the original and in all publicity material relating to the work’s sale.
(ii) the right against attribution to others: which prevents an author’s work from being attributed to someone else.
(iii) the right to prevent false attribution: which gives the author the right to remove his or her name from a work that they did not create. It includes the right of: (i) an artist to remove their name from distorted editions of the work, (ii) and the use of their name in advertisements.
United Kingdom – Paternity Right
In the UK there are two main types of paternity right: the right of attribution and the right against false attribution.
(i) the right of attribution: (s.77 CDPA) is the right to be named as the author of the work when a relevant (copyright) work is communicated or copied. The author’s name must appear in a clear and reasonably prominent manner in relation to the communicated work. For artworks, the artist has the right to be identified whenever his artwork is exhibited in public, is published commercially, or where an image of it is broadcast. In the case of film works, the artist also has the right to be credited as director when the film is publicly shown. The attribution right is infringed when an author has not been properly identified in relation to a work where attribution is required The only legal defences are the copyright exceptions applied to ‘fair dealing’ for the purpose of reporting current events and for ‘incidental inclusion’.
Formalities: Under UK law (s.78(1)) an author must first assert their right through an instrument in writing signed by the author if they are to rely upon it later. It is sufficient for an artist’s name to be identified on the original artwork or on a copy of it, or on its frame (even if this is later removed)(s.78(3(a) and these forms of identification thereafter bind the whole world. The right can also be asserted when an artist assigns or licenses the copyright in the artwork.
(ii) the right against false attribution: provides authors with the right not to be named on works they have not created (s.84 CDPA). It also applies, whether or not a person is an author, to artistic, musical, literary, dramatic and film works. It only lasts for 20 years after the death of the person who is falsely attributed to be an author. The right is infringed by a person who makes copies of a work to the public or exhibits in public an artistic work on which there is a false attribution. There is special provision for artistic works for artists to claim false attribution where the artwork has been altered, even if that alteration only amounts to a deletion of part of the artwork.
United States – Paternity Right
Under VARA, the right of attribution encompasses:
(i) the right to be identified as the work’s author;
(ii) the right to prevent the use of the author’s name as the author of a work that he or she did not create.
THE INTERGRITY RIGHT
France – Integrity Right
The integrity right under French law encompasses four main situations: (i) physical alteration of an original work; (ii) alteration to a reproduction or to a copy; (iii) changing the context or situation of a work; (iv) the performance or interpretation of a work. The integrity right also applies potentially to the creation of derivative works. The right applies to all works of the mind (except to computer programs). French law goes beyond the requirements of Article 6bis in that the modification does not have to be detrimental to the author’s honour or reputation in order to qualify as a violation of the integrity right.
Physical alteration: the right can be relied upon to prevent or to compensate structural changes being made to the original work. In Buffet v Fersing ,21 the artist, Bernard Buffet, executed a painting on six panels of a single refrigerator (signing only one panel). The defendant, who owned the artwork, dismantled it, selling each of the panels separately. The French courts accepted that the six panels were intended to form a single work and allowed Buffet to recover damages for the violation of his integrity right in relation to the work.
Alteration to a reproduction: an act done in relation to a copy of a work can also amount to an infringement of the integrity right. In Turner Co v Huston 22 the heirs of John Huston (the director) successfully sued a French television company for broadcasting on French television a colorised version of Huston’s film, ‘The Asphalt Jungle’. This film directed by Huston had originally been created in black and white. The Court of Appeal held that Huston’s integrity right had been infringed and that his heirs (who exercised the right posthumously) were entitled to damages.
Changing the context: the integrity right can also be infringed under French law when there are extrinsic changes to the work, so that the work is placed in a different context alien to the one for which it was artistically intended. In Chante de Monde v Twentieth Century Fox Film Corp ,23 the Russian composer, Shostakovich, was able to successfully prevent the use of his music to accompany a US made, anti-Soviet film as this did not accord with the composer’s own political views. The composer had failed under US law when he had sought to bring analogous proceedings in the US.
Performance and interpretation: the right can be infringed when a work is interpreted or performed in a way that does not accord with how the author had intended it. In 1992,24 a French court held that a theatre director was liable for infringement of Samuel Beckett’s integrity right when the theatre director arranged for the two main protagonists in the play ‘Waiting for Godot’ to be performed by two women rather than two men as stipulated in Beckett’s stage directions. The claim was brought by Beckett’s estate.
Completion: the integrity right in France enables authors in theory to force the completion of their work. In Dubuffet v Regie Nationale Des Usines Renault No.2 (1981),25 the artist Jean Dubuffet, who had been commissioned by Renault to create a monumental sculpture for its headquarters, was granted an order by the Cour de Cassation against Renault for it to complete the construction of his sculpture (an order which Dubuffet did not enforce).
Infringement: the French courts have made it clear that when assessing infringement of an author’s integrity right they will, above all, take into consideration the author’s subjective intentions, rather than how the action complained of is viewed objectively (i.e. by a ‘reasonable’ person) or by other members of society. This means that the integrity right is particularly strong in France. There are limited defences available for infringing uses. For example, the parody defence which applies under French copyright law also applies to moral rights’ infringement.26
United Kingdom – Integrity Right
The right to object to the ‘derogatory treatment’ of a work or any part of it applies under UK law for authors of original artistic, literary, dramatic and musical works and also applies to the directors of films. In order to show that the right has been infringed, an artist must first establish that there has been a ‘derogatory treatment’ of the work.
Treatment: ‘treatment’ of a work means any ‘addition to, deletion from, alteration to or adaptation of the work’ (s.81 CDPA). In order to amount to a ‘treatment’, the defendant must interfere with the work’s internal structure. This would cover the situation where a painting is cut from its original canvas and exhibited. The definition of ‘treatment’ is narrower than under Article 6bis of Berne which grants an author the ‘right to be able to object to any derogatory action in relation to the work.’ This seems to imply that a treatment can take place even if the work’s composition or structure are not altered; for example, where the interpretative meaning of a work is effected through ‘extrinsic’ changes to the work, as through a change of context. So for example, the exhibition of a religiously inspired artwork alongside a work of erotic art would probably not amount to treatment under UK law, but might under Berne.
Derogatory: under section 80(2)(b) CDPA, a treatment is ‘derogatory, if it amounts to a ‘distortion’ or ‘mutilation’ of the work, or if it is otherwise prejudicial to the honour or reputation of the author’. In the limited existing case law, the UK courts have linked distortion or mutilation of a work to damage caused to the author’s honour or reputation, requiring objective evidence of both. In Tidy v Trustees of the Natural History Museum (1996),27 the cartoonist Billy Tidy gave the gallery a series of drawings, which they exhibited. Tidy claimed that his integrity right had been infringed when, in reproducing his cartoons in a book, the gallery reduced the size and added colour to the background. The High Court refused to grant Tidy an application for summary judgment, stating that it would need to look at public perception of whether there had been an act of derogatory treatment and this would need to be objectively reasonable.
There is current uncertainty as to how the test in the UK is to be applied. This contrasts with the position in Canada, for example. In the Canadian case of Snow v Eaton Centre (1982),28 the artist claimant created a sculpture, ‘Flight Stop’ for a shopping centre in Toronto which depicted sixty geese in formation. The Eaton Centre subsequently tied ribbons around the neck of the geese as a Christmas decoration. Snow successfully argued that this was prejudicial to honour and reputation and used expert testimony to help provide evidence for this claim. The Ontario High Court ordered for the ribbons to be removed from his sculpture. The court agreed that the artist’s subjective conception of how an act or ‘treatment’ could be prejudicial to his honour or reputation could be taken into consideration providing that it was reasonably arrived at.
Further conditions: an author is protected from derogatory treatment of their work only when a protected work or copies of a protected work are dealt with in a specific way, i.e. when an artistic work is exhibited or published. It is unlikely under UK law that the right prevents the destruction of an artwork.29 Under UK law, no exceptions or defences apply to the infringement of the right except in relation to the reporting of current events. However, employees can lose the right in certain circumstances. The right can also be waived or infringement can be consented to under UK law.
United States – Integrity Right
Under VARA, the right of integrity encompasses (§106A.(a)(3)(A):
(i) the right to prevent any intentional distortion, mutilation or modification of a work of art that is prejudicial to the author’s honour or reputation;
(ii) the right to prevent any intentional or grossly negligent destruction of a work of recognised stature.
The integrity right under VARA is subject to certain limitations.
First, protection is limited to the ‘original’ artwork and not to reproductions. See the dispute between the artist Frederick Hart and Warner Brothers in Hart v Warner Bros (1997)30 (the case was settled). Hart alleged that Warner Bros had infringed his integrity right by reproducing elements of a bas-relief sculpture he had created for Washington National Cathedral (1982) depicting the creation of mankind. The sculpture was animated and figures were used to perform Satanic acts (the opposite of the artist’s intention in creating the sculpture) in the film ‘Devil’s Advocate’.
Second, protection does not apply to works of art incorporated into buildings in such a way that removing the artwork would cause the work’s distortion, mutilation or destruction if the artist had consented to the work’s installation before 1991, or consented in writing to these acts with the building’s owner after 1991. Finally, it does not apply where a work can be removed from a building without causing harm and where the owner seeks in good faith to find the artist and cannot do so.
THE RIGHT TO PREVENT THE DESTRUCTION OF THE ARTWORK
France – Right against Destruction
In France, perhaps unsurprisingly, destruction of an artwork has long been held to infringe an artist’s integrity right (see: Sudre v Commune de Baixas (1936)31 destruction of a statue for a fountain). However, there are limits to the right when public safety is an issue. In Rousel v Grenoble (1977),32 for example, a disintegrating sculpture in the Grenoble Municipal Park was destroyed by the local authority to prevent a safety risk to children who played near to it. The artist’s claim for moral rights’ infringement was rejected by a local administrative court.
United Kingdom – Right against Destruction
Although there is no case law on this point, it is doubtful whether the complete destruction of an artwork would give rise to a moral rights’ infringement claim under UK law.33 This is because it is unclear whether destruction is really “any addition to, deletion from or alteration to, or adaptation” of a work. The notion of a ‘deletion’ of a work would seem to imply that the artwork continues to exist which therefore excludes the possibility of destruction.
United States –Right against Destruction
VARA expressly grants artists the right to prevent any intentional or grossly negligent destruction of a work of ‘recognised stature’ (§106A.(a)(3)(b)). However, works of visual art that are incorporated into or made part of any building are excluded from protection if they were installed before VARA came into force or if the artist has signed an agreement to that effect.
Recognised stature: this depends upon the testimony of experts. The US courts have held that the appropriate test is: (i) that the visual art is ‘meritorious’ and that (ii) the ‘stature’ of the work is recognised by art experts, the artistic community and other members of society. The specific work in question, furthermore, must have achieved ‘stature’, not simply that the artworks of that particular artist are generally esteemed. See Carter v Helmsley Spear, Inc (1994)34 where the New York Federal Court held that a sculpture installed in a building’s lobby in Queens, New York, was a work of visual art under VARA and was ‘meritorious’ and of recognised ‘stature’ ordering a permanent injunction against its removal. However, the US courts have not always been generous when interpreting ‘stature’. In Scott v Dixon (2004),35 the claimant was unable to obtain a remedy for the removal and subsequent deteroriation in storage of her sculpture of a large steel swan commissioned by the defendant for his backyard. The sculpture had been removed by the defendant. The court held that the sculpture did not have the requisite ‘stature’ amongst members of the artistic community.
Intention to destroy: evidence must be provided that the defendants intended to destroy the artwork or caused its destruction through gross negligence.
Exemptions: VARA provides a particular exception to the right against destruction known as the ‘public presentation’ exclusion (§106A.(C)(2)). The exception provides that: ‘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…unless the modification is caused by gross negligence’.
The case of Phillips v Pembroke Real Estate Inc (2006)36 has cast doubt on whether the right to prevent destruction applies to certain site-specific artworks (i.e. those that form part of public outdoors location as opposed to being part of a building). In this case, the Appeal Court allowed the re-location of some of the claimant’s twenty-seven sculptures commissioned on the defendant’s part under the ‘public presentation’ exemption.
1. See, John Henry Merryman, Chapter 5, ‘The Artist’s Rights in the Work of Art’ in‘Law, Ethics and the Visual Arts’, Kluwer Law International, (2007) and Adrian Sterling, Chapter 8, ‘Moral Rights ’ in ‘World Copyright Law’, London, Sweet & Maxwell, (2008).
2. See, Martha Buskirk’s discussion of some of these disputes, for example, between Count Panza and Carl Andre and Donald Judd, in Chapter 1, ‘Authorship and Authority’ in ‘The Contingent Object of Contemporary Art’, The MIT Press, Cambridge, Mass (2005).
4. ‘The Artist’s Contract’ also known as ‘The Artist’s Reserved Rights Transfer and Sale Agreement’ (1971). See Alberro’s discussion in Chapter 7, ibid and also see Maria Eichhorn’s (ed.), ‘The Artrist’s Contract’, Walter Konig (2009), including interviews with artists who used and didn’t use ‘The Artist’s Contract’.
5. For a discussion of Serra’s dispute with the US General Services Administration, see Christina Michalos, ‘Murdering Art: Destruction of Art Works and Artists’ Moral Rights’ in ‘The Trials of Art’, edited by Daniel McClean, Ridinghouse, London (2007). See also C Weyegraf-Serra and M Buskirk (eds.) ‘The Destruction of Tilted Arc: Documents’, The MIT Press, Cambridge, Mass. (1991).
Comparison of Moral Rights
22. Turner Entertainment Co v Huston. On reference by the Cour de Cassation, the Versailles Court of Appeal (1994) ruled that the colorised version of ‘Asphalt Jungle’ infringed the moral rights of the director. CA Versailles, December 10, 1994, (1995) 164 R.I.D.A. 256.
A. Alberro, ‘Conceptual Art and the Politics of Publicity’, MIT Press, Cambridge Mass (2003).
L. Bently and B. Sherman, ‘Intellectual Property Law’ (3rd.Edition), Oxford University Press (2009).
J. Bresler and R. Lerner, ‘All About Rights for Visual Artists’, Practising Law Institute, New York (2006).
A. Dietz, ‘The Artist’s Right of Integrity under Copyright Law: A Comparative Approach’ (1994), 25 IIC 177.
J. Ginsburg, ‘Moral Rights in Common Law Systems’, (1990) Ent. LR. 121.
D. McClean (ed.), ‘The Trials of Art’, Ridinghouse (2007).
J. Merryman, ‘Law, Ethics and the Visual Arts’, 4th edition, Kluwer (2002).
A. Sterling, ‘World Copyright Law’, Sweet & Maxwell (2008).
F. Poullaud-Dulian, ‘The spirit of the work and the author’s moral right’ (2008) 215 R.I.D.A. 103.