Firstly the disclaimer bit: The advice herein shouldn’t be considered legal advice – I’m well researched but no lawyer. If in doubt contact a legal practitioner who deals with intellectual property issues.
Moral Rights laws cover the way a particular artwork can be used. It is broadly designed to protect the reputation of the artist from being damaged and thus also the potential to protect the artist’s future income. It does pay to know your moral rights.
The term moral right is derived from the French term “droit moral” and as such relates to the legally enforceable rights given to the creator rather than any moral right to publish artwork. Compaired with copyright, it is a relatively new area of law in a lot of countries – for example the Australian law is around 10 years old.
Moral Rights vs. Copyright
This is the part the law in which we are most familiar. Broadly speaking copyright protects the artist from having unlawful copies of his or art produced and distributed – hence the term copy in copyright. Copyright has been covered extensively elsewhere on the internet so I’m not going to cover it here again. Suffice to say that a lot of copyright and moral rights law is administratively treated alongside each other by governments since they both deal with with intellectual property.
A note: The following journal talks about the law as it mainly applies to Australia but they’re similar laws in a lot of countries in the world. I’ll endeavor to highlight different parts of the world as we come to them. It covers the basic rights – other countries may have additional moral rights.
Some of the basic moral rights are (applicable to at least these areas of the world):
The right to claim authorship (US, AU, CA, UK)
This right covers that when a work is published the artist has the right to be named as the artist. This would include:
• exhibition in a gallery
• publication or uploading to a web site like here at Redbubble
• reproduced (if allowed under copyright)
A these times the author has the right to be named in a clear and prominent way so that someone buying the work would be aware of the artists name. There is a reasonableness exemption here so for example if a gallery owner mixed up
The right to prevent the use of one’s name on any work the author did not create (US, AU, UK)
This covers false attribution of an artist’s name onto a work. This would include:
• putting another artists name onto your artwork as the creator
• selling or dealing with falsely attributed work
• altering a work of art and not crediting the creator and acknowledging the alterations done to the work
The right to integrity (AU, US,CA, UK)
This covers several aspects with keeping the artistic integrity of a work intact and not subjecting the artist work to derogatory treatment. This includes:
• distorting, altering or mutilating an artwork in a way that damages the artists honor or reputation
• displaying the work in public that damages the artist reputation
• destroying a work in a way that damages an artist’s reputation
The US situation:
In the USA the Visual Artists Rights Act (VARA) was implemented to meet basic rights so the USA could become a signatory to the Berne Convention. As such it does have protections as outlined above but they are only applicable to a small amount of artwork that meets all the following criteria:
• paintings, drawings, photographs, prints, sculptures, murals
• produced for exhibition only
• are single copies or have less than 200 copies signed and numbered
A few questions and answers
Can I transfer my moral rights? – No, unlike copyright you cannot transfer them. They stay with the creator of the work or, in the event of death, the estate.
How long do moral rights last? – Depending on the country they usually last as long as the copyright period or sometimes indefinitely.
Can I waive my moral rights? – Yes, the owner of an artwork can ask you, the artist, to consent in writing to a treatment of the work that could ordinarily breach moral rights. They must communicate to you how the work will be treated before you agree.
Are there any reasonable excuses for breaching moral rights? – There are in some circumstances (e.g. demolishing a building in which an artwork is affixed to) but importantly there are none when it comes to false attribution.
Do I have to attribute the artist if I use a stock image? – Yes if you use a substantial part of their artwork in your work. They may also put an attribution requirement as part of a copyright agreement.
My artwork has been parodied, can I claim my artistic integrity has been damaged? – This is a very difficult area of the law since both parody and the moral rights of artistic integrity both enjoy the backing of law. As yet I have to find a case outlined in Australia that has addressed this issue. The only case found is from the Netherlands where the low humour of a song parody was said to damage the artists integrity.
How do I show artistic integrity of artist has been damaged? – Usually this is proven by calling expert witnesses who can testify to this in a court hearing.
Are there any penalties for breaching someone’s moral rights? – Yes courts may award monetary compensation, injunctions, orders for apologies, orders of rectification.
A few examples of moral rights in action:
Snow vs The Eaton Centre (Canada)
In this case the artist Michael Snow was commissioned to create a sculpture of Canada Geese in the Eaton Shopping Centre atrium. Come Christmas time the centre decided to put Christmas ribbons around the necks of the Geese.
Snow obtained an injunction preventing the decoration of the Geese after the judge decided that the works’ integrity was “distorted, mutilated or otherwise modified” and that prejudiced the artist’s reputation and honour.
Meskenas v ACP Publishing (Australia)
In this case a painting of famous surgeon Victor Chang was published in the magazine Woman’s Day. The painting was incorrectly attributed to another artist. Even after 90 phone calls to the publisher by 89 year old artist Vladas Meskenas there was no apology.
A federal court magistrate awarded Meskenas $8000. Part of which was attributable to the behavior of the respondent in this situation.
Jackson Browne v John McCain
In this case the 2008 presidential campaign of John McCain used music created by Artist Jackson Browne. Browne lodged a lawsuit alleging copyright and moral rights infringements – the latter being that the usage of the song falsely implied that he supported the candidate. The case was settled out of court.
Moral rights in practice
If you feel you have had your moral rights infringed then firstly make sure. Carefully research the law as it applies to your country – and for that the copyright office is a good starting point. If you are still in doubt consult a legal practitioner who is skilled in this area. (the advice in this journal shouldn’t be considered legal advice)
You should be careful in informing infringers that they have broken the law when you find a breach of your moral rights. As you can imagine this is a relatively new area of the law and a lot of exhibitors and art owners may not understand their obligations. A little carefully written diplomatic communication can probably resolve most problems without recourse to more expensive means.
Just like copyright infringements you have to be weary of the costs involved in proceeding with court actions but it is fully within your rights to do so if you wish.
The audio download of the ABC law report – Moral rights and digital rights for creative artists
Information of moral law from the Australian Copyright Council (PDF)
Wikipedia – Moral Rights
Wikipedia – the USA Visual Artists Rights Act
UK Moral Rights
Got a question?
Happy to answer any you may have.