LEGALLY SPEAKING

Paul Sugden on The Right of Integrity

A story exists about a work of art that travelled around the world and was displayed in numerous art galleries. Eventually the artist saw it displayed at its final destination – and told the curator the painting was being displayed upside down. The curator said in reply, ‘but that is the way it has been displayed for the whole of the tour!’

This may seem absurd, but what does it tell us about the second right given by moral rights, that of the right of integrity? The second right given by the Copyright Amendment (Moral Rights) Act 2000 is the right for a creator to protect the integrity of the work against derogatory treatment. Is the hanging of the artwork upside down to be seen as derogatory treatment to the artists’ work? It may well be derogatory, as derogatory treatment is considered to be the doing of something to the work which is prejudicial to its creator’s honour or reputation such as materially distorting the work, mutilating the work or materially altering the work, and/or dealing in a work that has been derogated by reproducing the derogation.

This right is a very important right, as Australia has seen a number of situations where works have been derogated. For example, Pro Hart painted a refrigerator in his outback scenes and a purchaser wished to cut the refrigerator up and sell the panels as individual works. The cutting up of the work would now be caught by the right of integrity and prevented under this new moral right.

During the 1980’s advertisements appeared in the newspapers saying you could buy your own piece of a Picasso for a price of $200. What was on sale was a piece from an original work, which was then cut up into hundreds of individual pieces, on centimetre square.

Another form of derogatory treatment that would now be caught by this provision is the work of a Sough Australian Artist Driller Jet Armstrong who in the 1990’s purchased paintings by another Sough Australian artist (Charles Bannon) and painted crop circles over the original works.

The meaning of derogatory treatment includes the destruction of the work if this is derogatory to the artist’s reputation, and also the exhibiting of the work in a manner or place that is prejudicial to the artist’s reputation. So if the artist in the introductory paragraph of this article could say that their work had been prejudicially dealt with by it being displayed upside down for the tour, then they could claim damages for this prejudicial treatment as a breach of the right to integrity.

The artist does not have to be famous for them to protect the integrity of their work; it suffices if a case is made that fits within considerations of derogatory treatment. The mutilation or alteration of a work (other than with the artist’s permission) is the most easily considered of these rights. Chopping off parts of a work to make it fit your wall is NOT an option; you should get a work that fits the wall, not cut the picture to the size of the wall.

The rights of integrity apply to the artistic works produced by weavers and textile creators, just as they do to painters and photographers. This right lasts for the life of the creator plus fifty years.

As a creative person it is important to know the rights are there to protect your reputation, and how you intend your work to be viewed and appreciated by the public. However, this right could not be invoked by the creator of a fabric trying to say that the fabric cannot be cut up and used in a patchwork design. The reason for this is that the creator for the original fabric must be able to show that the use of the piece in the patchwork will cause a derogatory treatment to their work (being the full textile). This is unlikely to be able to be realistically argued.

More information on these rights can be obtained from the Copyright Society of Australia at www.copyright.org.au.