Moral Rights: Artists have got ’em

A vandalised painting exhibited by a gallery, a sculpture dyed black by a visitor, an artwork altered and published bearing a false signature – recent months have seen a number of these artists’ horror stories in the press. It is unsurprising that artists often feel their work is exploited and degraded by others and their rights ignored.

In the light of such events the time is right to repeat some basic legal facts. The Copyright, Designs and Patents Act 1988 give artists legal rights against derogatory treatment of their work. They are known as ‘Moral Rights’, but that is a misnomer. The rights are not simply a moral code which should be followed as best practice by all right-thinking people. They are legal rights which can be enforced and whose breach can be punished by the courts.

Three moral rights are provided by the Act. They are:

  1. the right to be identified as author
  2. the right to object to derogatory treatment
  3. the right to prevent false attribution of authorship

Identification as author
Whenever an artwork is exhibited in public, published commercially or televised, then (subject to some exceptions) the artist has the right to be identified as the ‘author’, the maker of the work. The identification can take various forms, for example, a plaque on the wall or a credit underneath a photograph in a magazine, but it must always be clear and reasonably prominent. The right to be identified as author does not arise automatically, unlike copyright, but must be ‘asserted’ (i.e. claimed) by the artist. Pick up any book published after 1989 and, on an inside page, you will read something like: “The right of Mrs X to be identified as author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988′. This is an assertion of the right to be identified as author. Once asserted, the right will last for the same time as copyright – generally for the author’s life plus 50 years.

The need to assert the right to be identified as author is one good reason to insist on a written contract whenever work is exhibited or published. The contract should include an assertion of moral rights – something as simple as ‘X asserts his moral rights’ will do, although it may be better to spell the rights out clearly as on the inside page of a book.

Artists should be aware that there are some situations in which the right to be identified as author cannot be enforced. Some of the more important are:

  • if the artwork is part of a collage or film (not the main image)
  • if the artwork is in fact a design for a product or package
  • if the artwork is made available for the specific purpose of illustrating a magazine or newspaper
  • if the work is computer-generated
  • if the artist actually surrenders the right (this can only be done in writing, signed by the artist).

Derogatory treatment
Artists live by their reputations. The law recognises this by giving them the right to object to derogatory treatment whenever their work is altered or adapted in a way which distorts or mutilates the work or is in some other way prejudicial to the ‘honour of reputation’ of the maker. The right arises automatically but only covers situations where the artwork appears publicly or is used commercially. Thus it applies whenever the work is included in a film, published commercially, exhibited in public or ‘possessed or dealt with’ in the course of business. The right will only apply if the person who possesses or deals with the artwork either knows or ‘has reason to believe’ that it has been altered in a derogatory manner.

In certain situations the right cannot be enforced. For fine artists some of the more important are:

  • if the work has been modified to comply with a law or avoid the commission of an offence (particularly important as concerns indecency, obscenity and public disorder)
  • if a work is made specifically as an illustration made available to illustrate a newspaper, magazine or encyclopaedia
  • if the work is computer-generated.

The right to object to derogatory treatment lasts for the same time as copyright – generally the artist’s life plus 50 years.

False attribution of authorship
Just as damaging to an artist’s reputation can be false attribution of authorship. This occurs where a work is attributed to an artist but in fact has been made by someone else. An artist can use the right to prevent false attribution of authorship to obtain an injunction (a court order) to stop anyone trading in or exhibiting works which are purportedly, but not in fact, made by that artist.

An injunction can also be obtained to stop copies of the artwork being issued to the public and to stop someone from possessing or dealing with the artwork in the course of business (if it can be shown that the possessor or dealer knew, or had reason to believe, it was falsely attributed). The right to prevent false attribution of ownership also extends to situations where the artwork was originally produced by the artist but has been altered without their consent.

Unless the artist consents to the false attribution, the right will apply automatically. It lasts for the artist’s life plus 20 years and can be enforced by an artist’s heirs. An artist whose moral rights are infringed need not simply feel hard done by. Legal proceedings can be taken in the country or High Court to prevent or stop infringement (by an injunction) and to claim compensation for any financial loss suffered. Perhaps as important is the extra muscle the rights give artists when negotiating their contracts: artists can insist that their moral rights are respected.

The law is not God. It has limitations. It cannot enable an artist to recover compensation from a bankrupt gallery or from a company in Timbuktu (unless the artist is willing to spend a vast sum!). Nevertheless the law does give real legal rights to artists to protect their economic interests and the courts will enforce them. Artists need not simply sit back and tell horror stories, they can use the law to gain redress.

© Henry Lydiate 1994

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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.