Moral Rights: A Suitable Case for Treatment?
Artists’ moral rights laws have been in force in the UK since 1989. Have they been operating well for the past twenty-odd years, or is there room for improvement?
This question is triggered by two recent cases: Richard Serra insisting on changing artworks after selling them; Durham County Council’s imminent destruction of a public artwork. Let us consider the basis of moral rights laws. They were first developed by France during the 19th century to protect an author’s honour or reputation: les droits moraux. They were later embedded into 20th century revisions of the Berne Convention for the Protection of Literary and Artistic Works 1886 (an inter-governmental agreement), Article 6bis(1) of which states: “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 honor or reputation.” In total, 164 signatory nations, including the UK and USA, have enacted laws automatically giving artist’ moral rights.
Many countries have extended Berne’s two basic moral rights (to claim authorship; to object to derogatory treatment of works). In France, for example, there are additional specific rights to decide when a work may be first exposed to the public (droit de divulgation) and to withdraw from exposition a work if financial compensation is paid to the publisher/exhibitor (droit de retrait et de repentir). In federal USA law, there are no specific rights of first public exposition or withdrawal from public exposition, but additional specific rights to prevent: destruction of a work of “recognized stature”; and being named as author of work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honour or reputation. In some countries including the UK, which have only introduced Berne’s minimum moral rights, courts have not yet decided whether additional rights (first public exposition, withdrawal from public exposition, prevention of destruction of works) would apply to visual artists.
Moral rights were enacted as a matter of public policy because governments recognized the usually weak bargaining power of artists when negotiating contracts for sale of existing works or for commissions of new work. Giving artists automatic statutory moral rights is intended to strengthen their negotiating power (with collectors and/or commissioners) to secure contractual terms aimed at avoiding future abuse of works and, if such protective contractual terms were not included, to give artists rights to take legal action against such contractual owners/commissioners (and against non-contractual third parties who subsequently become owners of artworks) for mistreating or disrespecting artwork: that is Berne’s underlying policy.
However, Berne’s Article 6bis(1) does not state whether signatory countries can legislate to permit moral rights to be contractually waived. In the UK and USA as well as many other countries moral rights laws specifically allow artists to contractually sign away all their moral rights – thus completely undermining Berne’s avowed intent to strengthen their contractual bargaining power. In practice, a contractual waiver by artists of all their moral rights is often required by commissioners of new artworks: the more so when a powerful commissioner negotiates with a relatively weaker artist. But it is no surprise that in France, and several other countries, contractual waivers of integrity rights are legally invalid.
Richard Serra is no stranger to moral rights wrangles. His large-scale sculpture, Tilted Arc, 1981, was commissioned and owned by the US General Services Administration and located in Federal Plaza in New York City. After installation, and a successful public campaign for its removal, the GSA unilaterally removed the sculpture and sold it as scrap metal. Federal US law did not enact moral rights legislation until 1991, and so Serra’s lawsuit for compensation at that time relied on the content of his original commission contract. The trial court was not persuaded that the contractual terms expressly or impliedly protected the work against removal and destruction by its owner: the suit failed.
Serra has recently been publicly challenged by a leading curator, Magdalena Dabrowski, for insisting on reworking his artworks after selling them. Dabrowski curated a major show at the Metropolitan Museum of Art in 2011, ‘Richard Serra Drawing: A Retrospective’. She commissioned new drawings from Serra, who also reworked much earlier ones that had been damaged or destroyed – the ones now in contention. In particular, Serra reworked The United States Government Destroys Art, 1989 (owned by the Broad Art Foundation), and insisted that his reworking carried only the original date: ‘Serra felt that 1989 was the inception and therefore the drawing was only a 1989 work. Moral rights gave him the right to that date as opposed to historical accuracy,’ Dabrowski said; and further commented that ‘historical accuracy is being compromised as a result of the Visual Artists Rights Act (VARA), which gives artists moral rights to disclaim their works and prevent their alteration by third parties.’ Serra is undoubtedly an artist of ‘recognized stature’. As such, he appears to have exercised his strong bargaining power to threaten to use a moral right of withdrawal of work from the show unless he restored what he considered to be damage.
Jo Fairfax is a UK artist whose stature and bargaining power is not as great as Serra’s. A graduate of the Royal College of Art and NESTA Fellow, Fairfax was commissioned to design and execute a public artwork, Civic Heart Arch, 2007, over a main thoroughfare in Chester-le-Street town centre. Recently Durham County Council decided to demolish the work as part of a redevelopment of the town. Repair and maintenance costs were cited as reasons for this policy decision. Unlike US federal law, UK artists’ – even artists of ‘recognized stature’ – have no explicit legal moral right to prevent destruction of their works. In this case, the aggrieved artist would have to look to his original commission contract for any remedy.
The successful performance of contracts effectively stems from the agreement of terms and conditions that give fair and reasonable benefits for both parties – proverbial ‘win/win’ outcomes. Commissions for original artworks are unique: a standard template or model is not sensible or good practice. For protection of the integrity of new work and the artist’s public reputation, and of the commissioner’s investment in its creation, a sound balance can be achieved through negotiation of key interrelated matters about the work. These include agreements for: maintaining good condition (via an artist’s maintenance manual/guide); minimum lifespan (if maintained in good condition); restoration/repair; insurance against damage to, and damage or personal injury/death caused by, the work; removal/relocation (especially if site-specific); public statements of the artist’s authorship and title of the work. Such contractual moral rights provisions should ideally be agreed even where the commissioner insists on the artist’s waiver of all statutory moral rights.
All in all, professional art business practices suggest that countries like the UK would benefit from a thorough review of the operation of their moral rights legislation, aimed at improving artists’ rights by: rendering legally void artists’ contractual moral rights waivers; giving artists rights to decide first public exposition, withdrawal from public exposition, and prevention of destruction of works.
© Henry Lydiate 2013