Christine Hutchison completed a student placement program at Arts Law through La Trobe University, Melbourne in summer 2007. Thanks to Michelle Harper from La Trobe University for her supervision on this project.
An artist's creative impulse and the work that results from this impulse are of great value to society. In Australia and internationally, legislation has been passed to protect a creator's right:
- to be recognised as the creator of their work;
- to ensure that no one else is identified as the creator; and
- to be able to protect their work from inappropriate modification, distortion or other interference with its integrity (otherwise known as derogatory treatment).
These 3 rights are referred to collectively as moral rights and they recognise the diverse interests involved in creating, publicising, experiencing and using artistic work. The last of these three rights is referred to as the right of integrity.
Moral rights seek to protect the creator's honour and reputation by recognising that a creator has an ongoing connection with their creation. This is very different to the economic rights that copyright law creates. The copyright rights to reproduction, performance or distribution may be traded, licensed and sold but moral rights always remain with the creator.
Integrity rights establish an atmosphere of respect within a community for the creative efforts of members of that community. They do this by making available formal legal mechanisms through which an artist is able to preserve the authenticity of their artistic expression.
Right of integrity under Australian laws
Although moral rights laws have existed in Australia since December 2000, we have not yet seen a right of integrity matter decided by a court in Australia. As a result, it is difficult to assess how the right of integrity will be interpreted and applied and what practical effect it will have for Australian artists.
Although right of integrity claims have not yet found their way to Australian courts, it appears that moral rights are in fact having an impact on the artistic community. An empirical study undertaken by Jenny Kaldor using data from Arts Law's client files in 2006 shows that hundreds of artists across all genres seek advice about attribution and derogatory use of their and another artists' work. So far these cases are being mediated, resolved or abandoned before progressing to court.
This article looks at how other countries have approached the right of integrity. Remember however, that Australian courts are likely to develop their own approach and do not have to follow the decisions of any international jurisdictions.
Internationally, protection of the right of integrity has been sought for remixes of classical and contemporary music, theatrical performances, defacement of sculptures and murals, reformatting of films and emulation of an artist's style by Google, to name only a few instances.
French courts have a long history of recognising artists' moral rights, ruling as far back as 1954 that placing the composer Shostokovich's music in a context contrary to his political beliefs can constitute derogatory treatment of the work.
Samuel Beckett was also successful in France in asserting his right of integrity when a director cast the two leads in Waiting for Godot as women. Beckett's estate, however, lost two similar challenges – one in Belgium and one recently in Rome.
Germany, Italy, Spain and India have all generally found in favour of the artist where work has been altered without their consent, and was contrary to their intention or wishes. This was illustrated recently when singer Tom Waits was awarded damages by the appeal court in Barcelona where Volkswagen/Audi was found to have used an unauthorised adaptation of his song and a sound alike artist impersonation for a television advertisement.
In India, a court upheld the moral rights of the author in circumstances where an author had assigned filming rights in their novel to a producer but the producer significantly changed the title, characters, dialogue and ending of the story without the permission of the author.
In the UK, singer George Michael was granted a pre-trial injunction to stop snatches of his music being strung together in a medley, but artist Bill Tidy failed to get relief against the Natural History Museum for shrinking his large-scale dinosaur cartoons to fit a book.
A brochure designer was also unsuccessful in the UK in attempting to stop parts of his work from being used in a brochure updated and produced by someone else, since the court found that the alterations had been done competently and left the artist's reputation and honour unsullied.
There are circumstances where Canadian courts have ruled in favour of artists where an alteration of the work is prejudicial to the creator's honour and reputation. For example, a court held that an artist's right of integrity had been infringed where red ribbons were tied to the necks of 60 geese that were part of the artist's sculpture without consulting the artist.
However, Canadian courts have not allowed moral rights claims where extracts of an author's work were published in the wrong order thereby changing the plot nor where a municipality clean-up crew destroyed an artist's public sculpture. It was decided that as the sculptor had received further commissions since the event this indicated that he was still a sought after artist and his honour and reputation was not prejudiced.
As USA have no provision for the protection of artistic integrity, authors have consistently failed to find relief in this jurisdiction. The American Broadcasting Co. edited versions of the Monty Python Flying Circus TV series by cutting out ‘offensive content'. The creators asserted that this altered the flow and meaning of the sketches, but they were unsuccessful.
Difficulties assessing the right of integrity
It can be seen from the brief review of some international right of integrity cases that the law is by no means uniform across different jurisdictions. Moreover, there is undoubtedly a subjective element involved in determining such cases. In the French courts, there is a presumption that any act which modifies the author's work is an injury to the author's integrity. It is therefore unnecessary in France to show prejudice to the creator's honour or reputation to prove an infringement of the right of integrity. However, other countries' legislation (including Australia's) requires an artist to show that the modification was “prejudicial to the author's honour or reputation”.
There has been differing views internationally as to how prejudice to the creator's honour or reputation should be assessed. These discussions revolve around whether the test involves a subjective element or judgment on the part of the creator as to whether his/her honour has been prejudiced, or whether the court must consider the reasonableness of this view by applying an objective test of reasonableness to whether the modification is prejudicial to the artist's reputation or not.
Should the court ask, for example, whether Da Vinci would have objected to the moustache that the artist Marcel Duchamp painted on a replica of the Mona Lisa or whether a reasonable person would think this modification affected the honour or reputation of Da Vinci? Should a court consider whether the treatment of an artist's work debases the work or affects the sale of the work in assessing prejudice to honour or reputation?
Australia is yet to see what interpretation of ‘prejudicial', ‘reputation' and ‘honour' will be used by the courts here. However, from the literature it appears that it is likely that the test in Australia will incorporate some objective judgment of prejudice perhaps involving expert evidence of the effect of the derogatory treatment on the creator's honour and reputation.
Conclusion – Where to from here?
A substantial body of case law for moral rights infringement in Australia is likely to be a long time coming and the international treatment of the moral right of integrity has varied across different countries.
There is some empirical evidence at the Arts Law Centre of Australia that artists are taking notice of these laws, discussing them, testing their boundaries and seeking to protect them. However, the lack of prior cases indicating how a court will interpret these rights (thus informing a potential claimant of their likely chances of success) coupled with the high costs likely to be involved in litigating a moral rights claim may work to discourage artists from bringing such claims.
Whilst it is interesting to see how the right of integrity has been upheld or defeated internationally, until an artist brings a right of integrity claim in an Australian Court, we cannot determine how the law will develop in Australia. Australian courts do not have to follow the decisions of other countries' courts and are likely, when the time comes, to develop their own interpretations.