Moral rights in art: cases highlight risks

Out-Law Analysis | 21 Apr 2020 | 8:00 am | 6 min. read

Rulings in recent months in the US and Czech Republic highlight why organisations must remember that moral rights often subsist in public artwork and architecture before taking action that might be considered as derogatory treatment of the works.

Art and architecture can attract a wide range of opinion, where beauty truly is in the eye of the beholder. However, regardless of individuals' views on art and architecture, it is vital that organisations do not underestimate the impact the creator's moral rights can have when wanting to alter such works.

The recent cases in the US and Czech Republic demonstrate that organisations that fail to factor in the rights subsisting in art and architecture open themselves up to potentially large claims for damages and reputational harm. This is equally true for organisations in the UK, where moral rights are enshrined in statute.

What are moral rights?

In the UK, moral rights are provided for under the Copyright, Designs and Patents Act (CDPA) 1988. Moral rights are a collection of personal rights given to creators or subjects of certain types of work i.e. literary, dramatic, musical, film or artistic works. These rights include:

  • the right to be identified as author or director respectively whenever the work is commercially published, exhibited to the public or included in a film or broadcast – the 'paternity right';
  • the right to object to derogatory treatment of their work – the 'right of integrity';
  • the right not to be identified as the creator of a work created by someone else – 'false attribution'; and
  • the right not to have copies of works exhibited, broadcast or issued to the public – the 'right of privacy'.

Moral rights belong to the author of an original work. In the UK they may be waived – i.e. given up – but cannot be assigned or sold to a third party. Importantly, they remain with the creator of the works even if the copyright does not, and are passed to the author's estate on death. In agreeing to waive moral rights, an author would no longer obtain the benefits moral rights provide.

The Czech case                                     

In December last year, the High Court in Prague ruled that the placement of adverts on a building constituted a moral rights infringement. The case was reported recently in the UK.

The case concerned an appeal raised by the building's architect before the High Court against a May 2019 judgment of the Municipal Court in Prague, which had considered whether the building's owner had infringed the architect's moral rights when allowing advertising to be displayed via a giant billboard erected via scaffolding attached to the side of the building.

The architect wanted the court to order the removal of the adverts from the building at the building owner's expense, and also claimed for financial compensation for what he argued was the moral harm he had suffered. However, his claim was ruled unfounded by the Municipal Court.

However, the High Court in December 2019 overturned the lower court's decision. It held that covering a substantial part of a building with adverts can constitute a mutilation of a work. Works of architecture will be devalued where billboards are attached to a significant part of a building, the court said, likening it to cases where digital banners are placed on a building's roof front.

The Municipal Court was ordered to re-evaluate the question of compensation.

The US case

In February this year, the US Court of Appeals upheld an earlier ruling against a developer in relation to the whitewashing of graffiti from walls at '5Pointz', an old warehousing site situated in the city of New York.

According to New York news and arts publication Gothamist, the Court of Appeals considered that the graffiti artists held moral rights in the works and that they also qualified as public art of "recognised stature", which is protected under the US Visual Artists Rights Act 1990.

"Although a work's short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognised stature," the court said, according to the Gothamist report. The court cited works by Christo and Banksy as other examples of temporary public art that have gained "recognised stature".

The developer in the case was ordered to pay 24 graffiti artists a total of $6.75 million in damages in relation to the destruction of their works. The developer had destroyed the works of graffiti prior to obtaining a permit to proceed with the demolition of 5Pointz and turn the site into luxury apartments.

The commercial implications of the two cases

The Czech decision is particularly interesting as it confirms that moral rights protection can subsist in architectural works. The decision of the High Court was grounded on a right of the architect not to have his work used in a manner detrimental to its value, and not on the alternative basis that he had not given his consent to the alteration or modification of the work.

The finding in the US is a clear reminder and indication that graffiti art is important and should be respected. The case is a cautionary tale to developers to ensure appropriate legal notice is provided, or contractual provisions are included within development or licensing agreements to prevent artists’ enforcing works. It is a positive triumph for graffiti artists and reminder of the importance of protection afforded by copyright to artworks.

The UK perspective

While these cases are significant in their respective jurisdictions, in the UK the scope of moral rights is slightly narrower and as a result there have been limited developments on artists or architects using moral rights to protect their copyright works. However, it is interesting to reflect on how creatives in other jurisdictions rely on moral rights, with recent success, as a tool to further protect their artwork and architectural designs. This is encouraging for rights holders, particularly since the common criticism of the UK framework is that the moral rights protection provided for does not adequately protect artists and architects alike.

The criticism of the UK framework arises because the provisions on moral rights under the CDPA do not fully implement the wording of the Berne Convention – an international treaty in relation to the protection of works and the rights of authors.

While the 'right of integrity' under the CDPA provides authors of works with a right to object to derogatory treatment of their work, the Berne Convention goes further by also providing authors with the right to object to "other derogatory action in relation to the work".

Those provisions of the Berne Convention, stipulated under Article 6bis, were drafted to include actions that do not fit the narrow definition of physically altering a copyrighted work, for which authors enjoy exclusive rights, but which may be just as damaging or objectionable. For example, under UK law the destruction of a work in its entirety is not an actionable derogatory treatment leaving people free to remove graffiti without fear of reprisals.

Commercial reality: waiving rights

In the UK, moral rights cannot be assigned by an author to another person, but they can be given up or ‘waived’. However, most commercial contracts, such as a commission or licence agreement, commonly include clauses that require artists – in agreeing to those contracts – to consent to the use of their works or waive their moral rights in them, thereby precluding them from subsequently enforcing those rights. There are good commercial reasons why it should be possible for moral rights to be waived especially in circumstances where the underlying copyright is being assigned and the artist is being paid.

This was recently demonstrated with the demolition of a concrete office block in Oslo, Norway, adorned with two Picasso murals. The demolition caused public outcry and led to the Norwegian government being accused of sacrilege, the Times reported last month. Picasso's estate has given its approval for the murals to be reinstated in a new building to be constructed on the same site as the original block, but critics have said the destruction of the site would "strip the artworks of their meaning", according to the newspaper.

Accordingly, both parties should seek to negotiate and settle the position with regard to moral rights so as to ensure a fair balance between the parties.

It is important that artists and architects alike recognise the protection offered by copyright and moral rights. They should seek to understand all rights available. Careful legal scrutiny of agreements on a case by case basis is critical to understand any waivers that are included.

Fiona Timms is an intellectual property law expert at Pinsent Masons, the law firm behind Out-Law.