Naming rights

Donald Richardson is an artist and writer on art and design. He is researching for a book on the art and design of Australian war memorials.

When the Adelaide press announced in 1919 that a memorial would be erected in the city to the late King Edward VII, the city was assured that it would be made "by one of the best men in the Empire" – but the artist was not named. Neither was he named in a meticulously detailed report of 19 June 1920, which told that the sculpture had arrived in Adelaide from London – "in 114 packing cases" – and that the pedestal was nearing completion. However, it did name the local people who had worked on its erection – the builder (Walter Torode), the mason who cut the stone steps (W.H. Martin), the Supervisor of Public Buildings (A.E. Simpson) and the City Engineer (J.R. Richardson).

The memorial – which has recently been revealed in its true glory by the re-designing of North Terrace in Adelaide – was unveiled by the visiting Prince of Wales soon after, but the artist's name was still not mentioned on the invitation to the unveiling! Adelaide had to wait until the 16 July 1920 issue of The Advertiser to be informed that the sculptor was none other than Bertram Mackennal. Mackennal was elected to the highest rank of the Royal Academy of Arts and, soon after the unveiling, was dubbed our first artist knight. Mackennal had made the memorial before the 1914-18 war, but because bronze was commandeered for the war effort casting had to wait until 1919.

To us, this seems a surprising lapse for a city that prided itself as an outpost of European civilisation among the savages of The Antipodes, yet it is a paradigm of the general attitude to public sculpture and architecture – indeed to most visual art. So, these works appear in our midst as if by magic, created by whom we know and care not, descending like the 'cargo' that the American planes brought to the wilds of Niu Gini in the Second World War.

Of course, it has always been the practice in Europe to acknowledge the worth of artists – without whose genius and work the monuments and buildings would never even exist – by naming them whenever their work is discussed. It is also the established practice in art publications to give full accreditation to authors in any medium.

This deficit in our wider culture was recognised by the Federal Government in 2000 when it passed amendments to the CommonwealthCopyright Act 1968 to introduce laws regarding the moral rights of creators. These amendments established three moral rights that all artists have, including:

• the right of attribution of authorship of the artist who created the work;
• the right not to have authorship falsely attributed (i.e. credited to someone who did not create the work); and
• the right of integrity of authorship (i.e. the work must not be subjected to derogatory treatment, such as destruction, alteration or mutilation that is "prejudicial to the author's honour or reputation").

So, you would think that the unconscionable treatment that Mackennal suffered in 1920 would now not happen. But, not so! Bill Morrow, of the Adelaide legal firm Norman Waterhouse, observes that our newspapers infringe the moral rights provisions in the Copyright Act almost every day by not attributing the authorship of a photograph, a building or a work of art they reproduce. Observant readers will confirm that this is so. How often do we see a photograph of a business magnate posing in front of a flashy abstract or Aboriginal painting hanging in the board-room, or a fashion-model posed before one of those sculptures architects sometime characterise as a "turd on the plaza"? In these cases, the artist or designer – without whose work the shot would be less appealing – is not given his or her due recognition. Such a scenario arose in a recent case, Meskenas v ACP, in which the magazine Woman’s Day printed a photograph of Crown Princess Mary of Denmark and the former premier Neville Wran standing in front of a painting of Dr Victor Chang. When the photograph was printed the caption that accompanied the photograph wrongly attributed the authorship of the portrait to another painter, Jiawai Shen, instead of the actual painter. Subsequently, Mr Meskenas and his son contacted ACP approximately 90 times seeking an apology and correction in print for the false attribution of authorship. The printed apology did not appear in the magazine until June 2006, which was some months after Mr Meskenas commenced proceedings. Further when the retraction was finally published, the image was printed in reverse. The Court ultimately found in favour of Mr Meskenas and awarded him approximately $8000 additional damages as a result of ACP’s failure to apologise and print a correction.

Given that the Courts appear willing to provide damages for those whose moral rights have been infringed, it begs the question, how is it that the press get away with such frequent moral rights infringements? As Morrow says, the Copyright Act provides only a civil remedy and only to individual artists. This means that its practical application awaits an artist successfully suing a publisher for non-compliance so that legal parameters can be established and perpetuated. But this is not likely to occur in the near future, artists having better things to do than taking publishers to court. A group action might be possible, but artists are difficult to organise. And the National Association for the Visual Arts with Arts Law, which lobbied for the changed legislation, says it lacks the resources to do anything about the situation. In the meantime, busy newspaper proprietors and editors allow the inertia of past practice to flow on.

However, moral rights do exist and it is in the interests of both artists and publishers that they be observed. Artists depend upon the publicity their works may receive to establish their reputations and, consequently, their livelihood; publishers would do well to avoid the potential of a punishing suit for damages at some time in the future.

Moral rights are not proprietary rights (i.e. they cannot be sold) and they cannot be waived. It is possible for an author to consent to acts being done which would otherwise constitute an infringement of moral rights and, in the case of employees such consents can be broad in their application. Consent needs to be obtained before doing an act that could constitute infringement. Morrow points out that it is possible that in-house newspaper photographers and cartoonists have entered into such an agreement. In addition, moral rights can be infringed when it is reasonable in the circumstances to do so, and thus a publisher may try to argue historical industry practice as a factor that should be considered in determining when it is reasonable for a publisher not to attribute as well. Morrow also notes that, when a detail only of a work is reproduced the publisher may plead that the legislation relates only to the use of a work in whole or “substantial part" but this is determined based on the quality rather than quantity of the part taken.

Cartoonists usually ensure their attribution by signing their cartoons, but this avenue is not always available to artists, particularly when the work being reproduced is a sculpture or building. It seems that the greatest problem with failing to attribute artists is in relation to reproductions of public sculptures, architecture and paintings in publications.

Readers who agree that the situation cries out for redress might consider seeking advice from Arts Law and writing to editors whenever they see a potential infringement of the moral rights of the artists concerned. Perhaps by continually reminding publishers of the moral rights laws and expectations of artists, we may bring about a change in the behaviour of some publishers and see artists receive due recognition for their work.