Artists' Moral Rights
Protecting Your Creative and Professional Reputation
by
Cindy Hill, Esq. for Fine Art Registry™
Internet giant Google often changes the font and ornamentation of its name as presented above that familiar search-text-box to reflect happenings of the day: snowflakes for winter solstice, tulips for the first of spring, flags for patriotic holidays. One day in spring 2006, the letters took on an eye-catching pattern of yellow circles and black lines. The occasion was the birthdate of Spanish artist Joan Miro, and Google sought to pay homage, and draw public attention to, the works of this important modern painter.
The Miro estate and the Artist Rights Society demanded immediate removal of the logo. While protesting that it did not believe the image violated copyright law, Google nonetheless quickly reverted their letters to a boring font.
Google asserted that the Miro design was a ‘fair use.’ Fair use is one of the few, narrowly-limited exceptions to copyright law which allows portions of a copyrighted work to be reproduced "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," without infringing on copyright. (Section 107 of the 1976 Copyright Act.) Because the matter was quickly settled by Google’s capitulation, no court was given opportunity to determine whether the display of an amalgam of adaptations of small portions of an artists’ works in a commercial logo of an internet service (which does not otherwise provide text such as art reporting) would meet the legal definition of ‘criticism.’
Whether such an argument would have prevailed is an interesting question: ‘Fair use’ is a difficult row to hoe, especially for a commercial, as opposed to non-profit educational, institution. It is true that people ‘learn about art’ by seeing it, but that doesn’t give me the right to put reproductions of Warhol’s Campbell’s Soup Can on coffee mugs and sell them to pay my rent, even if the world would be more enlightened about art as a result. (The question of whether that would violate Warhol’s or Campbell’s copyrights, or both, is one we’ll leave to another day – but suffice it to say, I can’t legally do it.)
One reported basis of the Miro family objection, however, was that of moral rights. In addition to copyright, artists of original works of visual arts (single pieces and limited reproduction runs of less than 200) have continuing rights of attribution and integrity. Moral rights protect the artist’s creative and professional reputation by allowing the artist the legal right to control how and where a piece may be displayed and presented and whether or not, and how, attribution is listed.
The artist can preclude the owner of a work of art from altering it or displaying it improperly or in a manner or location which denigrates the artist’s vision for the piece. An artist can preclude the owner of an original sculpture from painting the sculpture blue or replacing the garden hose in the subject’s hands with a rifle (or vice versa) because this would alter, and thus diminish, the artist’s creative work. (Remember that moral rights apply only to original pieces and limited editions of 200 or less. The photographer who shot that famous picture of Farah Fawcett still has copyrights, so no one can put it on t-shirts and sell them; however, so many thousands of prints of it are, even now, hanging on basement and dorm walls that the photographer can not assert moral rights to preclude the next generation of artists from ‘modifying’ the work with magic markers, even if the modifications would amount to a ‘denigration’ of the beauty of the original creative work, by, say, the addition of a moustache or wardrobe alterations.)
It is readily apparent why an artist might want to retain control over the placement of their work when the place in question has negative connotations. Some painters, for example, might not want their works hanging on the wall of a seedy bar, where it would not only be at risk of getting slashed and splashed by a flying beer mug, but where people might get the false impression that the artist endorses the place. I had an analogous experience when some of my written articles wound up on a site run by a political organization that I had no desire to be associated with (not to mention that I should have gotten paid for their use). Editors of legitimate publications who located my works on such an unsavory site would be disinclined to have me associated with their own publications, and so I had to assert my copyrights and get that site to remove my articles in order to maintain my professional reputation and the economic benefits of that reputation.
But many people find it less obvious why an artist would object to a work being portrayed in what most people would perceive of as a positive light – such as a tribute on Google. One of the many problems with using an artist’s work without permission, however, is that the artist is entitled to maintain control over his or her reputation. There are, no doubt, a significant number of artists who would have loved to hang their work on that seedy bar-room wall, and who would object strenuously to their sculpture or painting being hung in a church or synagogue, because they in no way wish to be professionally associated with that venue or the values it represents. What is ‘good’ for the artist and his or her reputation and works is for the artist to decide as part of his or her creative vision, and is a large part of what makes that artist unique.
Would the position of the Miro estate – that Google violated Miro’s moral rights– have been upheld in court? Not in American courts – the U.S. Visual Artists Rights Act of 1990, Section 106A of the Copyright Act, says that moral rights under American law end on the death of the artist, and unlike copyright interests, moral rights can not be transferred (although the artist can waive them in writing). But the internet image was distributed around the world, and the laws of other nations regarding moral rights sometimes exceed those of the United States.
However, before the U.S. Visual Artists Rights Act, American courts did listen to claims regarding similar situations under a theory of violating the copyright protection of precluding others from making derivative copies of a work, and this copyright protection would still have been in place on Miro’s images. So the question of whether a Google tribute is fair use versus whether the letters g-o-o-g-l-e rendered in a recognizable artists’ style is a derivative work infringement goes without definitive court decision until some future day. But no matter which legal theory you think would win, the rule is simple: An artist’s images should not be used, unless you have permission, or where you are absolutely certain that the narrow statutory definitions of fair use or library and archive use are fully met.
Fine Art Registry can be of enormous help in this regard. With a publicly accessible art image gallery, Fine Art Registry can more easily help you determine the owner of the rights of a piece of artwork than the costly and time consuming process of searching the U.S. Copyright office archives; and Fine Art Registry can connect you with the rights-holders of listed foreign artworks as well as those of American origin. The continuous timeline of ownership noted for a piece in Fine Art Registry means that you can see whether copyrights have been transferred, or whether moral rights have been waived or extinguished on any registered piece. As an artist seeking to protect your copyright and moral rights, or an art owner attempting to secure permission to put a piece of artwork to work for you or your company, Fine Art Registry makes it convenient and efficient to follow art rights laws, making sure both artists and fine art values are supported by all of us who love the visual arts.
— Cindy Ellen Hill, Esq.
Comments:
The views and opinions of individual authors/contributors expressed on the FAR web site do not necessarily state or reflect those views and/or opinions of Fine Art Registry or its agents or subsidiaries.
© 2006 Global Fine Art Registry, LLC. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed without express permission.
Fine Art News Feed
