By Delia Brown*
As Published in ART+law, September 2001
Arts Law was recently contacted by an artist who was concerned about a sculpture he had created for a monastery that the Fathers wanted to change. The artist is well known in Australia and overseas for his religious and secular sculptures. He believed changes would have a negative effect upon his reputation and constitute derogatory treatment of his work. In such situations creators of public works need to be aware of their moral rights to preserve the integrity of their work.
Since the introduction of moral rights for creators in December last year, implications are unfolding in the public sphere. The Copyright Amendment (Moral Rights) Act confers moral rights in relation to architecture and public artwork. Examples are arising of moral rights being invoked to preserve cultural heritage and ensure that a creator's work is presented to the public in the form that it was intended.
A controversial example is the proposed refurbishment of the National Gallery in Canberra. The building’s architect, Col Madigan, says the changes show 'unreasonable contempt' for his design. The new architects say values have changed since Madigan designed the building in 1969 and that a work of architecture cannot be divorced from its function. They argue that the adaptations intended for the gallery are functional in terms of increasing gallery and storage space and addressing shortcomings with the building’s current disabled access, fire-safety and air conditioning. Whether practicality overrides artistic integrity in this case will be an objective debate, however, the legislation affords Madigan certain rights in relation to notice and consultation.
Moral rights in practice
Australian artists have previously had no rights against their work being dealt with according to other's discretion. Councils have often removed or relocated artwork without consulting or notifying the artists. In one instance, sculptures created for a redevelopment authority had signage added to them without the artist's consultation and consent. Another artist was commissioned to create a sculpture for a local club which decided to modify the sculpture during renovations without consulting the artist.
The moral rights of artists and architects should now be carefully considered prior to any dealings with their creations. In terms of public art, this applies to all artworks in public space including commissioned work. 'Public art' also includes artwork displayed in private spaces which are open to the public such as hotel foyers, schools or local clubs.
The rights relating to public artworks and architecture therefore have implications for the construction and property development industry. In terms of redevelopment, owners must follow the procedures set out in the Act to ensure they don't infringe these rights. Artists and architects must be given notice of the intended works. If the creator wants to access the site or discuss the changes, the owner must facilitate this. A creator of public artwork is entitled to a reasonable opportunity (three weeks) to remove or document the work, before its relocation, alteration or destruction.
If an owner does not comply with the amendments, artists have the right to prevent an artwork or a building they have designed being dealt with in a way that is prejudicial to their honour or reputation.
Where do they apply?
Moral rights apply only to individuals. So in relation to architects, rights are enforceable by the individual rather than the firm. Even if an artist has assigned all of their copyright in a design to another, the artist retains his or her moral rights in the work for the duration of their life. Moral rights are not transmissible except if the creator dies or his or her affairs are lawfully administered by another. However, more than one creator may agree to exercise their right of integrity jointly.
Rights regarding attribution
Artists are entitled to attribution as the author of work where it is:
• reproduced in a material form;
• published;
• exhibited to the public; or
• communicated to the public.
Creators must be identified according to their own specifications or by any reasonable clear and prominent means. This may involve displaying the name of the artist prominently.
Creators also have rights against false attribution of their work. False attribution includes inserting or affixing a false name on the work, knowingly dealing with falsely attributed work or a reproduction of it or knowingly publicising a falsely attributed work. For example, artists could object if the names of their superiors are substituted for their own.
Right of integrity of authorship
The Act protects artists and architects from having their work subjected to derogatory treatment. Derogatory treatment includes mutilating or distorting work, altering it or doing anything that is prejudicial to the author's honour or reputation. As highlighted by the National Gallery example, the integrity of an original architect's design should be considered prior to changes or additions to a building.
Australian artists who have previously had their work abused may now have legal recourse under the Act. Arts Law has been approached by a number of artists in the past who's right of integrity has been breached.
• A commissioned artist created a mural for the council who provided verbal assurance that an anti-graffiti coating would not be applied to the work. Despite the assurance, the council applied an anti-graffiti coating to the mural, which changed both its appearance and its nature as an artwork designed to inspire public comment.
• An artist-in-residence created a sculpture for a primary school, a slippery dip in the shape of a bird. The school dismantled the bird and sold it without consulting the artist on the appropriateness of the proposed new location, or whether the integrity of the work would be compromised by its relocation.
However, infringement of this right is not solely determined by the author’s subjective view that their work and reputation has been harmed. Australian courts are likely to follow overseas patterns and consider objective factors. The following examples from Europe illustrate how the interests of both sides may be balanced:
• Heirs of the moral right of integrity were free to oppose alleged degradation of the work, but could not render it immutable in the face of necessary and non-disfiguring adaptation of a building over time in face of functional and financial needs.
• The architect was not able to restrain insertion of new transparent internal walls as alterations must be held not to be disfiguring and so not in violation of the right of integrity when they are necessary to enable a building to perform its original function.
• The architect of extensions to a town hall was allowed to assert his moral right of integrity to prevent sun-blinds being put on the building in order to protect the character of the building.
The defence of reasonableness
Moral rights will be enforced only where it is reasonable. If treatment of an artwork is reasonable, no infringement will arise even if such treatment would otherwise infringe the creator's moral rights. This protects public institutions and museums being prohibited by onerous burdens in relation to a creator's rights. In deciding what is reasonable, regard will be had to:
• the nature of the work;
• the purpose, manner and context in which the work is used;
• any industry or voluntary codes of conduct that are relevant to the use of the work;
• the difficulty and expense in identifying the author;
• whether the work is made in the course of the creator's employment or under a contract for another person;
• if the work has two or more authors, the other author's views about the failure to identify them.
Failure to recognise moral rights in relation to public artworks may result in proceedings to enforce these rights through remedies such as an injunction to prevent the work going ahead or even damages. Moral rights will be balanced against opposing interests in terms of protecting artwork but they do ensure that a higher level of respect is paid to the creator.
Arts Law is currently updating its contracts to include moral rights provisions.
