Copyright and Moral Rights: New Legislation (moral rights)

This article explains what are Moral Rights.

On August 1, 1989 the Copyright, Designs and Patents Act 1988 comes into force. In March, we began a three-part exploration of key changes by looking at copyright itself – works protected, for how long, initial ownership and movement (1: AM 125); in May, we concluded with remedies for infringements – under the civil and criminal law (2 concluded: AM 126). This month, Part 3 deals with the most radical innovation: moral rights.

MORAL RIGHTS
Copyright is intended to protect makers of original works of art/craft/design against unauthorised economic exploitation, by enabling them to prevent and receive financial recompense for such abuses and, of course, to authorise exploitation – for financial reward, if so desired. In this country to date, copyright legislation has given little or no protection to such makers against abuses of their reputations: public denial of their authorship and derogatory physical treatment of their works no longer in their possession, control or ownership. But from Aug 1 protection against such non-economic abuses will be given by the new law.

The reason is that the UK has for many years been a signatory to the Berne Convention, an agreement dealing with international ‘intellectual property’ matters such as copyright and moral rights; each participating State undertakes to enact its own laws in terms that harmonise with those of the Convention, so that ‘intellectual property’ abuses can be remedied by any maker ‘qualified’ through being resident, domiciled or a citizen of any such Convention country. Outstanding Convention obligations led to the changes in copyright law (Parts 1 and 2) and the introduction of moral rights now fulfils the only other one:

Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work which would be prejudicial to his honour or reputation.

These ‘moral rights’ should, in addition, be inalienable i.e. the law should give them, but not allow them to be transferred or taken away. They should last for the author’s lifetime and for some years after death.
The 1988 Act, therefore, introduces these rights.

What Works Are Protected?
All visual works will be protected against moral rights abuses, so long as they are ‘artistic works’ as defined by the Act’s copyright provisions (see AM 124).

Who Can Claim Protection?
Makers of ‘artistic works’ are protected against moral rights abuses.

What Moral Rights Abuses?
Such makers of such works are given three rights to protect against abuses:

  1. Right to be identified as author; whenever their work is published commercially, exhibited in public, televised (broadcast, cable or satellite), included in a film shown in public or in copies of such a film issued to the publicNB: the identification must always be clear and reasonably prominent; in particular, it must be in a manner likely to catch the attention of any person acquiring a copy, seeing the exhibition or television programme; on a building, it must be visible to people entering or approaching.The right will be given virtually automatically; the only legal prerequisite is that makers have to have ‘asserted’ themselves; (see Exceptions, below).
  2. Right to object to derogatory treatment; whenever their work is subjected to any
    • addition
    • deletion
    • alteration
    • adaptation
      if such treatment distorts, mutilates or is otherwise prejudicial to the ‘honour or reputation’ of the maker.
      NB: the right to object only applies to a work which has been treated in such a way, if it is
    • published commercially
    • exhibited in public
    • included in a film shown in public or in copies of such a film issued to the public
    • possessed or dealt with in the course of business by anyone who knows or has reason to believe it has been subjected to such derogatory treatment.The right will be given automatically, but there are exceptions (see below).
  3. Right to prevent ‘false attribution’ of authorship; three distinct situations are covered. First, the Late Tom Keating scenario, so-called because he made paintings which were dealt with in the course of business as if they had been made by other artists (albeit more celebrated and long since deceased). The new law provides that whenever anyone is identified (expressly or implicitly) as author, in or on any artistic work they did not make, they may prevent:
    • issue of copies of such a work to the public
    • exhibition of such a work to the public display or material containing such false attribution to the public
    • issue of material containing such false attribution to the public
    • possession or dealing with such a work or copy of such a work in the course of business (knowing or having reason to believe it contains such an attribution and that it is false).

Thus, for example, the artistic executors of Picasso or Moore will be able to use the new law to prevent anyone trading in works purportedly, but not in fact, made by them – as against using copyright law to prevent the unauthorised reproduction of works truly made by them.

Second, the Late William Hogarth scenario, so-called because many of the engravings made with his authority were subsequently altered without it and dealt with as if they were his unaltered, authorised originals. The new law provides that an original author may prevent anyone dealing in the course of business with:

  • a work they made (which has been altered since they parted with possession of it) as being the unaltered original
  • a copy of a work (which has been altered since they parted with possession of the original) as being a copy of the unaltered original.

NB: the maker has to be able to show that the person dealing with their altered work (or copy of such) did so knowing or having reason to believe that it had been altered. Thus, for example, the artistic executors of Picasso or Moore will be able to use the new law to prevent anyone trading in works they made which were altered after they parted with possession of them, or in copies of such altered works – irrespective of whether such alterations amount to derogatory treatment or such copies infringe their copyright.

Third, the Late Salvador Dali speculation, so-called because of substantiated claims that some copies of his original works represented as being copies made by him, were in fact made by others after he had merely signed blank material on to which the reproductions went. The new law provides that whenever a copy of an artistic work is falsely represented as being a copy made by the author, they can prevent certain trading activities (described under the Late Tom Keating scenario, above). Should such claims about Dali be substantiated, therefore, the new law would enable his artistic executors to prevent anyone trading in copies of his works purportedly, but not in fact, made by Dali personally – even if such reproductions were in fact authorised by him, and involved no derogatory treatment or alteration.

How Long do Moral Rights Last?
The first two rights, identification and derogatory treatment, last as long as copyright. In most cases, therefore, this will be for the lifetime of the author plus fifty years after death (see AM 124). The third right, false attribution in all three situations described (Keating, Hogarth and Dali), lasts for the author’s lifetime plus twenty years after death and actually exists as law today, being simply re-enacted with slight improvements for the sake of completeness. Accordingly, the recent attempt to prevent the public auction of work by Utrillo’s artistic executor, on the basis that the work was not made by Utrillo, failed in part because Utrillo died more than twenty years ago (‘false attribution’). The Keating scenario, though available in law, had expired in Utrillo’s case twenty years after his death in 1959.

Are There Exceptions to Moral Rights?
The right to identification as author is not infringed:

  • unless it has been asserted by the author (see below)
  • if the work is computer-generated
  • where the author’s employer originally acquired copyright (because the work was made during the course of employment) and the employer has authorised the use of the work without insisting on the author’s (employee’s) identification
  • in film/TV newsreporting of current events (but not in relation to photographs, the use of which must be authorised by the copyright owner/photographer)
  • in film/TV or in another artistic work(e.g. collage, montage, mixed media, and so on) so long as it is not the main image screened or represented by educational establishments in examination questions in public administration (judicial/parliamentaiy proceedings, enquiries, and so on)
  • if the work is, in law, a ‘design’ for something which is not artistic work (e.g. a product or package)
  • if the work is, in law, an ‘artistic work’ but the maker authorise its industrial reproduction and marketing
  • if the work is made, or is made available, for the specific purposes of publication in a newspaper/ magazine/ periodical/ encyclopaedia/ dictionary/ yearbook/ other collective work of reference
  • if the right has been ‘waived’ in writing (i.e. written and signed by the author giving up the right) or the author has consented
  • if copyright in the work has expired

NB: assertion can be dealt with by makers endorsing their works with a unique written provenance, signed by them and stating their authorship, date of completion, copyright byline and the reservation of all rights (see form of words at the end of this piece).

The right to object to derogatory treatment is not infringed:

  • if the work is computer-generated
  • if the work is made for the specific purpose of newsreporting current events
  • if the work is made, or is made available, for the specific purposes of publication in a newspaper/ magazine/ periodical/ encyclopaedia/ dictionary/ yearbook/ other collective work of reference (and for any subsequent exploitation elsewhere without any modification of the published version
  • if the work is modified to avoid the commission of an offence (public disorder, indecency, obscenity, blasphemy, profanity) or to comply with a requirement of the law
  • if the work is modified by the BBC to avoid public offence, encouraging or inciting crime or disorder – so long as there is a sufficient disclaimer in relation to the author’s non-approval of the change
  • where the author’s employer originally acquired copyright (because the work was made during the course of employment) and the employer has authorised the use of the work and the modification without insisting on the author’s (employee’s) identification
  • if the right has been ‘waived’ in writing (i.e. written and signed by the author giving up the right) or the author has consented
  • if copyright in the work has expired

NB: no assertion necessary; but just as well to say so (see form of words at the end of this piece).

The right to prevent false attributions is not infringed:

  • if the right has been ‘waived’ (i.e. written and signed by the author giving up the right) or the author has consented.

No assertion necessary; but just as well to say so; subsistence of copyright irrelevant, but right ends twenty years after death.

What Is The New Privacy Right?
Quite separate from makers’ moral rights, another moral right (so-called) is given to commissioners of private or domestic photographs; it is the right not to have

  • copies of the work issued to the public
  • the work exhibited or shown in public
  • the work televised

The commissioner’s privacy right is not infringed

  • in film/TV or in another artistic work (e.g. collage/montage/ mixed media, and so on) so long as it is not the main image screened or represented
  • in public administration (judicial/parliamentary proceedings, enquiries, and so on)
  • if the right has been ‘waived’ in writing (i.e. written and signed by the commissioner giving up the right) or the commissioner has consented
  • if copyright in the photograph has expired

NB: no assertion necessary; but just as well for commissioners to say so at the time they engage the photographer.

What Are The Remedies for Infringement Of Moral Rights?
The person entitled to any of the moral rights given by the new law will be able to take legal proceedings in the civil courts in the UK -or in a Convention country, if necessary – for orders preventing infringements anticipated, stopping or correcting any occurring, financially compensating for any damage caused by any breach; and, of course, for orders to recoup from the infringer legal costs of bringing the proceedings.

When Does All This Become Law?
As from Aug 1, 1989, any act done to any artistic work – whether the work itself was made before or after that date – which infringes anyone’s moral rights, will be caught by the new legal provisions. Infringing acts which occur before that date and continue after it, are not specifically covered in the new Act’s transitional arrangements; no doubt a test case will occur to cause the courts to decide. However, certain safeguards have been provide in the case of certain works made before Aug 1 1989:

  • if the author of an artistic work died before that date, there will be no rights of identification or to object to derogatory treatment
  • if, under the “old” commissioning rules (which will be abolished from that date) the commissioner acquired first ownership of copyright, any act done with the commissioner’s permission will not infringe the rights given to author from that date the commissioner’s privacy right will not apply to photographs taken before that date.

RED LETTER DAY: AUG 1 IS THE DATE WHEN ALL THE NEW PROVISIONS MENTIONED IN THIS THREE PART SERIES COME INTO FORCE – COPYRIGHT AND MORAL RIGHTS.

© Henry Lydiate 1989
All rights reserved.
No part of this work may be reproduced or transmitted in any form or by any means , or stored in a retrieval system of any nature, without the written permission of the copyright holder.
No part of this work may be modified without the written permission of the author.
No part of this work may be exposed to public view in any form or by any means, without identifying the creator as author.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.