Sculptures in public – protecting your work

Australian law has traditionally been fairly unhelpful when it comes to protecting sculptures.  Until recently artists have had very little power to prevent their work from being subjected to ill treatment once sold.  Sculptors who display their works permanently in public have also been powerless to stop others from commercialising their work.  Fortunately, there have been some positive steps of late to address these long-standing problems.

Copyright protection for public sculptures

There is a unique exception in copyright law regarding sculptures on permanent public display – a sculptor has no legal grounds to demand remuneration for any photography or filming of their work, television broadcast, or reproduction of the sculpture in a painting, drawing, or engraving.  This means that a sculpture on permanent public display could effectively end up on a t-shirt, postcard or corporate calendar without the artist ever being notified or receiving a cent.

This exception was addressed recently by the Commonwealth Government’s Report of the Visual Arts and Craft Inquiry (the “Myer Report”).  The 2002 Report recommends that the Government consider the viability and implications of repealing these provisions.  It is currently considering its response.  In the meantime, moral rights do provide some limited protection to ensure that reproductions of sculptures are at least properly credited, and are not dealt with in a derogatory manner.

Moral rights

In December 2000 legislation came into force which allows every individual artist the right to:

1. be attributed as the author of their work (and identified in a clear and reasonably prominent way);
2. take action against anyone who falsely attributes the authorship of the work to another; and
3. prevent others from treating their work in a derogatory manner, known as the right of integrity.

Right of integrity

Derogatory treatment means any action to the work that is prejudicial to the artist’s honour or reputation.  Derogatory treatment may include anything from modifying a sculpture to suit the owner’s tastes, exhibiting it in a manner or place that is prejudicial, or relocating or destroying the work.  An aggrieved artist may seek a court injunction to prevent any action to their work, demand financial damages, or even seek an order for a public apology. 

The right of integrity will not be infringed if the person can prove that their actions in dealing with the work were reasonable in all the circumstances.  Considerations as to what is “reasonable” include the nature of the work, the manner and context in which it is used, and any relevant industry or voluntary code of practice. 

An artist may consent to having their moral rights infringed.  However, consent must be in writing and must specify both the works covered and the particular acts (or omissions) allowed. 

There are also some specific provisions giving rights to artists whose artworks are going to be removed, altered or destroyed.   Among other things, these provisions say:

• a moveable artistic work can be destroyed only if the artist has first been given a reasonable opportunity to remove it; and
• an artistic work that is affixed to or forms part of a building can only be changed, removed or relocated if the artist has been properly notified and access and consultation provisions have been complied with or if the original artist can not be located.

More generally, people responsible for artworks on public display (like the owners of buildings to which the artworks are affixed) must consult with the artist before dealing with it in any way that could affect the artist’s reputation or integrity.

Commissioned works – some final tips

When it comes to a commissioning a sculpture:

1. make sure that the deal is in writing;
2. ensure that moral rights are explicitly referenced in the agreement, including provisions ensuring proper credit for the work, and consultation before it (or the building to which it is attached) is altered in any way;
3. consider securing a written commitment from the commissioner to provide public notices discouraging photography or filming of the work; and
4. consider pushing for a written agreement from the commissioner for artist consultation/approval before any commercial filming or photography deal is signed that may feature the sculpture.

Artists should be aware of their rights and remember that contracts are always open to negotiation – if the law doesn’t protect the artist, then a well-drafted agreement still might. 

Marcus Fowler is a former solicitor at Melbourne firm Aitken Walker & Strachan.