About time: moral rights victory for Victor

Victor Cusack is a well-known Australian sculptor who has sixteen bronze public art sculptures throughout Sydney, and the United Kingdom in Portsmouth and Edinburgh. Cusack's sculpture Man, Time and The Environment is a large eight metre high bronze, glass, stainless steel and concrete sculpture sitting in the Florence Mall, Hornsby. The sculpture was commissioned by Hornsby Shire Council and unveiled in 1993. Nicknamed the 'Hornsby Clock', it is a water driven sculpture that has moving parts, a seventeen note carillion and includes three clocks of different design, one being a huge pendulum clock that has the same time cycle but twice the pendulum weight of Big Ben.

In his book Public Sculpture in Australia, Michael Hedger describes Cusack's work as most unique and says, "the extraordinary combinations provide a work of surprising harmony. Cusack's environmental sentiments are readily apparent and the local Council's initiative in commissioning such a work is visionary" (Michael Hedger, Public Sculpture in Australia, Sydney: Craftsman House, 1995).

When the local Westfield shopping centre near the sculpture was renovated the Council gave permission for the sculpture to be temporarily moved so that a new extension could be added to the shopping centre. Unfortunately the sculpture was not reinstalled according to Cusack's specific instructions and in 2003, only ten years after the sculpture was unveiled, it was no longer in working order. As the sculpture sat there, no longer keeping time or moving as it was designed to do, it became known locally as 'Man, and the Environment Out of Time.'

Cusack approached Arts Law for assistance and Arts Law was able to advise Cusack that under the moral rights provisions in the Copyright Act 1968 (Cth) Cusack's sculpture should be restored to its original working condition. Arts Law advised Cusack that he had three moral rights: the right of attribution, the right against false attribution and the right of integrity. The right of integrity meant that Cusack could argue that the sculpture should not be treated in a derogatory way. Derogatory treatment is any treatment which prejudices the artist's honour or reputation as an artist. This includes changing, demolishing, destroying, mutilating or exhibiting the artist's work in way that would have an impact on the artist's honour or reputation. Cusack's sculpture had remained unrepaired and inoperable for over four years, and he felt that this was having a negative impact on his honour and reputation.

Arts Law assisted Cusack with sourcing a pro bono lawyer, through the Public Interest Law Clearing House (PILCH) service, who would represent him whilst negotiating with the Council and Westfield. Peter Banki, from Banki Haddock Fiora volunteered to assist Cusack. As a result of this assistance Cusack's sculpture was repaired and is once again in working order. Reflecting on the process Cusack says, "these voluntary combined efforts have been superb, definitely the major factor contributing to accelerating the repair after nearly four years of procrastination. It has been a significant experience watching the efforts of many privately motivated public-spirited people and government supported organizations (including the Sculptors Society) overcome this injustice and deprivation of public property, to achieve ultimate success."

The local Hornsby community have also responded positively and have benefited from the repair of the work. "I can confirm," says Cusack, "that the response and publicity from the public to the repair also confirms they are as grateful as I am to have their sculpture now operating again. Certainly the fault was not mine and the cost of forcing action at law was far beyond my capacity and without Arts Law's contribution the sculpture would still be sitting there not operating."

Katherine Giles was a senior solicitor at Arts Law.

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