Up Against the Wall: part 1

‘I am told that you have a thorough knowledge of the subject of artistic copyright. And write to ask if you would be so kind as to give some advice on the subject.

I am not personally involved in this matter but as a collector I am very concerned at the recent destruction of some very fine murals around the lobby of a Hotel. The artist, one of the best in this country, is well known to me and did the paintings which are of a very considerable extent, on canvas as a commission from the Hotel about ten years ago. She was paid for the work but there was no mention of the sale of copyright or otherwise.

The Hotel has recently entirely redecorated the lobby (in execrable taste as it happens) and have in the process destroyed the paintings, although they could have been removed.

It has occurred to me that the artist may still retain the copyright in the work and have a claim on those who have destroyed these works.

The redecoration and destruction took place while the artist was out of the country, otherwise she might have intervened and asked to buy them back or made some arrangements so that they could be removed and used as separate works for which they would have been suitable.

I would be most grateful if you could spare a moment to write giving your opinion of the situation.’

This extract from a letter written to me last month raises issues yet to be discussed in detail in this column, namely artists’ moral rights. The time has come.

Picasso’s holes
A ‘cowboy’ carpet Fitter has left a trail of complaints in South Yorkshire, and earned the nickname of ‘Picasso’ from consumer protection bodies.

Customers have been so upset after seeing that they have complained in their dozens to the county consumer protection department. On several occasions the complaints have led to civil court actions. But the culprit – whom officials refuse to name – is still weaving his way around the area.

The name Picasso comes from his tendency to leave holes, trying later to fill them with strange shapes, from The Times 16/2/83

The Facts

The Deal
Paintings commissioned ten years ago by a Hotel, to be sited around the lobby; no mention of copyright.

The Abuse
Redecoration of the lobby which destroyed the paintings.

The Law
A Contract for Services, or for Sale?
A contract, whether written or verbal, was made for the painting of murals. The terms were that the artist would paint murals; the Hotel would pay the artist – but for what? Did the artist agree to sell the murals, or merely her skill and labour to paint them on the hotel’s walls? What did this sample of promises mean?

The answer is not easy and a court would have to look at many things, such as: – what did the parties say, write or do about ownership of the finished murals, when they made their deal; or – does the law impose any obligations on parties who say nothing about such things when they made their deal; or (if there can be no answers to those questions) – what would the parties have agreed, if they had discussed the question of ownership, when they made their deal.

In this particular case it is highly likely that a judge would have to answer the third question only (since the parties said nothing at the time, and the law imposes nothing on them): and-pure speculation by the judge, you understand-one of the two things might have been agreed. Either, the artist would own the finished murals and be paid only for her skill, labour and materials; or the Hotel would own the murals and the artist would have been paid for her skill, labour, materials and for the transfer of ownership to the Hotel.

Because nothing was said about ownership, your guess is as good as mine. To help him decide, the judge would have to look at the artist’s customary practice for such commissions (if any), the artist’s normal fee (if any), customary practices and fees of other artists, the level of fee on this occasion, and any conduct or statement by the parties at the time or in the intervening ten years. Difficult.

If the judge found that the artist owned the work because, in his judgement, she was paid merely for her services, then the Hotel might be guilty of trespass to the artist’s goods or even of criminal damage; in either case compensation could be ordered to be paid by the Hotel to the artist for her loss. However, if the judge found that the Hotel owned the murals, then their destruction would have been perfectly lawful; unless the parties could be said to have agreed at the outset, as a term or condition of the sale, that the Hotel would look after the work and not alter, damage, or destroy it – in which case (highly unlikely, in the absence of a written term or condition) the hotel would be in breach of contract and therefore be ordered to pay compensation to the artist for her loss resulting from the breach. Ifs, buts and maybes, pointing to little hope for our artist. What about copyright, though?

No matter what was agreed, written or verbal – or not agreed – about copyright, the law is quite clear. Copyright law gives to the owner the right to prevent others reproducing, publishing, broadcasting or televising by diffusion, the original artwork. It does not, therefore, give the copyright owner the right to prevent the destruction of the artwork.

It never matters who owns the copyright, when the work is destroyed. So what protection does the law give to prevent such abuses?

Moral Rights
Earlier this century, as now, artists throughout Europe suffered similar such abuses, and others, for which the laws of their countries offered them no protection. Many lobbied their respective governments to introduce laws affording protection to their honour and integrity as well as to their artworks – with great success. The droit moral, as it is known throughout the world, now exists in the laws of sixty-one countries.

The Berne Convention
The droit moral started life as Article 6 bis of the Berne Copyright Convention, which now reads:

‘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.’

In fact, many more countries than the sixty-one which have now enacted legislation giving effect to Article 6, signed the Convention and -thus promised to pass such laws. Even the United Kingdom government is a signatory but, to date, has never enacted such legislation despite the fact that the following Western states have done so: Austria, Belgium, Denmark, France, West Germany, Greece, Iceland, Italy, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, Spain. Sweden; plus all the Soviet bloc – and most recently, the state of California.

The Rights
Each country’s legislation differs, but essentially remains the same giving effect to the spirit of Article 6. And so the following legal rights exist: – the right to create (i.e. the right not to fulfil a commission) – the right of artistic integrity (i.e. protection from alteration, distortion. Mutilation or destruction of artwork) – the right of disclosure (i.e. to determine when a work is complete and ready for release) – the right to control public exhibition – the right of attribution (to claim authorship or to deny false attribution of authorship).

None of these rights yet exists in the laws of the United Kingdom – nor in Kenya, from whence came the letter which prompted this exploration. In the next issue, these rights will be examined in more detail, with a prognosis for their introduction in Britain.

© Henry Lydiate 1983



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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.