Moral Rights of Artists

Moral rights are noneconomic rights in creative works, which protect the superior interests of human genius.

Therefore, a work of art must be protected and kept as it emerged from the imagination of its author and later conveyed to posterity.

In the UK moral rights continue for the duration of copyright protection, with the exception of the right of attribution which lasts the life of the author plus 20 years, and can pass to an author’s heirs upon death.

Section 80 of the Copyright, Designs and Patents Act 1988 [the ‘CDPA’] provides:

‘(2)   For the purposes of this section—

(a)    “treatment” of a work means any addition todeletion from oralteration to or adaptation of the work, other than

(i)     a translation of a literary or dramatic work, or

(ii)     an arrangement or transcription of a musical work involving no more than a change of key or register; and

(b)    the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director…

and in the following provisions of this section references to a derogatory treatment of a work shall be construed accordingly.

(4)    In the case of an artistic work the right is infringed by a person who—

(a)    publishes commercially or exhibits in public a derogatory treatment of the work, or communicates to the public a visual image of a derogatory treatment of the work,

(8)    This section has effect subject to sections 81 and 82 (exceptions to and qualifications of right).’

Section 81 CDPA provides:

‘(1)   The right conferred by section 80 (right to object to derogatory treatment of work) is subject to the following exceptions.

(2)    The right does not apply to a computer program or to any computer-generated work.

(3)    The right does not apply in relation to any work made for the purpose of reporting current events.’

It is not clear what amounts to derogatory treatment, but it seems that as well as there being either a distortion or mutilation this must be prejudicial to the honour or reputation of the artist.

In Tidy v. Trustees of the Natural History Museum [1196] 39 IPR 501] HHJ Overend, sitting in the Plymouth County Court stated:

“In my judgement what the plaintiff must establish is that the treatment accorded to his work is either a distortion or a mutilation that prejudices his honour or reputation as an artist. It is not sufficient that the author is himself aggrieved by what has occurred.”

‘Primary infringement of this right in relation to an artistic work can take the form of:

(a)    publishing commercially, exhibiting in public or communicating to the public a visual image of a derogatory treatment of the work; or

(b)    showing in public a film including a visual image of a derogatory treatment of the work or issuing copies of such a film to the public.

Secondary infringement of the right to object to derogatory treatment of the work takes place when a person deals in an infringing article and has knowledge or belief that the work infringes the right in section 80. Dealing can take the form of:

(a)    possessing in the course of the business and infringing article; or

(b)    selling or letting for hire, or offering or exposing for sale or hire an infringing article: or

(c)    in the course of the business exhibiting in public of distributing and infringing article; or

(d)    distributing and infringing article otherwise than in the course of business so as to affect prejudicially the honour or reputation of the artist.’ ‘Moral Rights’ by Ruth-Redmond-Cooper, Director of the Institute of Art and law.

Case law on moral rights in the UK is sparse.

In Confetti Records Ltd v. Warner Music UK Ltd [2003] EWHC 1274, the court applied the two-part test set forth in section 80(2)(b) of the CDPA (above):

(i)     adaptation that amounted to distortion, mutilation, modification, or other derogatory action, and

(ii)     this would be prejudicial to honour or reputation.

‘Analyzing these factors in light of article 6bis of the Berne Convention, the court concluded that an author can object to distortion, mutilation, or modification of his work only if it is prejudicial to his honour or reputation. The mere fact that the work is distorted is not enough. … The court dismissed the case, in part because it found no evidence of prejudice [to the author’s] honour or reputation, and therefore concluded that there was no derogatory treatment. Some commentators have noted that without a definitive ruling in the High Court after a full trial, or indeed at a higher court at all, the scope of derogatory treatment in the UK remains uncertain. It is clear, however, that there must be prejudice to the author’s honour or reputation and that the test is objective, rather than subjective. Also, taking into account the interpretation of article 6bis of the Berne Convention, “derogatory” would suggest a subjective standard, but still subject to the more objective criterion of prejudice to honour or reputation, and analogous to the personal interests protected by the law of defamation.’ Visual arts and the law (2013) by Judith Powda p.116.

Therefore, to succeed at trial, an artist must persuade the court that a distortion, mutilation, modification, or other derogatory action defacement is also prejudicial to his/her honour or reputation.

Expert evidence, if it can be obtained and is admissible, is likely to be of assistance to the court.

Disparaging tweets and other communications received on social media may also support the artist’s case.

While it is generally accepted that mere placement of a work within a larger context (e.g. a speech playing or surrounding slogans) would not qualify as a ‘treatment’ since there is no addition, deletion, alteration, or adaption, because Section 80(b) CDPA formulates the legal test of derogatory treatment as including anything that ‘is otherwise prejudicial to the honour or reputation of the author’, it is arguable that placement of a work within a larger context amounts to derogatory treatment where the overall impression is prejudicial to the honour or reputation of the author. I submit that success at trial would depend upon proving that the work formed part of a composite sensory message which included accompanying [images] and [sound], i.e. that the impression given to the public is that the work and the setting in which it had been placed were linked, i.e. because they do not compete with, or contradict each other in the eyes of a visitor to the exhibition. Where in addition, a work has been daubed with a statement or symbol that appears to connect the work with the setting in which it has been exhibited, the impression is reinforced. In which case the author can potentially sue for derogatory treatment on two standalone grounds of claim:

  1. alteration to or adaptation of the work – i.e. addition, deletion, alteration, or adaption of the work; and
  2. the setting in which the work has been placed is prejudicial to the honour or reputation of the author.

‘Provided the author has asserted their right to paternity, then any commercial publication, public performance or (in general) other exploitation of the work including via the Internet must identify the author (or director of the film) otherwise this right will be infringed. Commercial publication includes making work available to the public by means of any electronic retrieval system. One might consider the Internet to be one enormous electronic retrieval system. Also, the inclusion in the CDPA by the 2003 regulations of the “act of communication to the public” as an act potentially infringing moral rights in the work means that it is now clear (if there was any doubt) that moral rights apply to websites. …  Digital Copyright Law and Practice , Fifth edition by Simon Stokes (2019) paragraph 4.2.1.

However, Section 81(2) of the CDPA provides that the right of integrity does not apply to computer programs or computer generated works.

While in the UK performance artists have a right of attribution and integrity (i.e. the right to object to derogatory treatment), these rights are of limited application to the visual arts because they do not apply to films.

See also my blog: Copyright protection of Art – Copyright protection of Art | Carl’s Wealth Planning Blog

As a practising Barrister, I am developing Art and Cultural Heritage Litigation (including proceedings in the Intellectual Property Enterprise Court) and Mediation, as a niche practice area.

A leading global publisher of academic and professional books has expressed an interest in principle in commissioning me to write a book about art and cultural heritage disputes, and I am developing a detailed chapter structure for submission in March 2022.

The book is provisionally entitled, ‘Handbook of Art & Cultural Heritage Dispute Resolution’.

My aim is to write a practical handbook for legal practitioners, mediators; mediation advocates; and parties (including States).

For more information about the book please visit: Mediation of Art & Cultural Heritage Disputes – Carl Islam