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LAW OFFICES OF NICHOLAS A. CARLIN
LADY CHURCHILL'S REVENGE AND THE ARTIST'S "DROIT MORAL" IN AMERICA
by Nicholas A. Carlin
In 1954, the British Parliament commissioned artist Graham Sutherland to paint a portrait of Sir Winston Churchill as a gift for his 80th birthday. Churchill, upon seeing the portrait, reportedly commented that the semi-crouching and glowering pose made him look as if he were sitting on the toilet. His wife, Lady Churchill, vowed that the painting would "never see the light of day". It never did. Years later it was discovered that she had in fact destroyed the painting.
Sutherland chose not to pursue the matter, but the incident raises the interesting question of what, legally speaking, he could have done had he wanted to, and generally, what legal rights an artist has when the owner of a work of art decides to alter, mutilate, or even completely destroy the work.
The right of an artist to protect his or her artwork from such conduct is in fact a right that has long been recognized in France and other European countries and is known as the artist's "right of integrity". The right of integrity is just one of number of rights classified under the category of the "droit moral" or the moral rights of an artist. In addition to the right of integrity, the droit moral includes, among others, the "right of paternity" (the right of the artist to have his or her authorship recognized) and the "right of disavowal" (the right to disclaim authorship of a work). This article will be limited to discussion of the right of integrity.
Before going any further, it is important to keep in mind the distinction between the three qualitatively different property rights an artist may have in a work: first, the right to physical possession of the work itself; second, the copyright, or right to reproduction of the work; and third, the moral rights.
To illustrate this distinction, when Sutherland sold the painting of Churchill to Parliament, he gave up the right to physical possession of the painting, but still retained the copyright and the moral rights. Anyone wanting to make a copy or reproduction of the painting, including the Churchills, would have had to get Sutherland's permission. Sutherland could also have transferred his copyright to someone else, but even in that case he would still retain the moral rights to his work.
Until recently, the moral rights of artists were not recognized under United States law. But in 1979, California passed the California Art Restoration Act which incorporates much of the "droit moral". Then, in 1984, New York passed similar legislation, apparently inspired by an incident in 1980 in which the Bank of Tokyo cut up and removed a sculpture by Isamo Noguchi from the bank's Wall Street office without informing the artist. Noguchi was shocked to discover that he had no legal recourse. Over the next few years, several other states also passed moral rights laws.
The federal government got into the act in 1988 when Congress (after an unusually short debate of almost 100 years!) joined most of the rest of the world in adopting the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention, while primarily concerning copyright law, also guarantees to artists the rights of integrity and paternity. Congress passed implementing legislation in 1990 known as the Visual Artists Rights Act of 1990 (“VARA”).
Because VARA is federal law, it pre-empts most if not all of the California Art Restoration Act and the moral rights laws enacted by other states. Accordingly, for the most part, we need only concern ourselves with VARA. Here's how it works.
What kinds of artwork does VARA apply to?
- Only works of "visual art" are covered. Visual art is defined generally as original paintings, drawings and sculptures. Photographs produced for the purpose of exhibition and printed works such as lithographs are also covered, but only in limited editions of no more than 200 copies, each of which must be signed and consecutively numbered.
- Works which exist in a single copy need not be signed by the artist, although sculptures must bear some identifying mark.
What kinds of artwork does VARA not apply to?
- Works that expressly do not qualify as works of visual art include: motion pictures and other audiovisual works, books and periodicals, maps and charts, and merchandising, advertising and promotional material.
- Works made as "work-for-hire" are also not covered. (What constitutes a work-for-hire is pretty complicated, so if in doubt, consult your attorney.)
Who is covered under VARA?
- Only the artist. Unlike copyrights, the moral rights granted under VARA are personal and non-transferable, meaning they last only for the lifetime of the artist and only the artist can enforce them. (It should be pointed out that under the California Art Preservation Act, public interest organizations also have the right to enforce integrity rights. This is one part of the California law that possibly is not pre-empted by VARA. The issue has yet to be litigated.)
What is the scope of the right of integrity under VARA?
- VARA divides the right of integrity into two categories: first, distortion, mutilation or modification of a work; and second, destruction of a work. BR>
- Distortion, mutilation, modification: The artist has the right to prevent any intentional distortion, mutilation or other modification of a work if it would be prejudicial to his or her honor or reputation.
This big restriction here is that the act must be intentional. Thus, the two Australian entrepreneurs who cut an original Picasso canvas into 500 pieces and sold them for $135 each as original Picassos, would certainly be liable, but someone stupidly flicking burning cigarette ash onto a painting would probably not.
- Destruction: The artist has the right to prevent the destruction of a work as long that work is of "recognized stature" and the destruction was done either intentionally or through gross negligence.
This provision has the drawback from the artist's point of view of having to prove in court somehow that the work is of "recognized stature". It also requires proof of at least "gross", as opposed to ordinary, negligence.
For example, a few years ago I represented a client who had been commissioned by a city to create an outdoor sculpture. The work was apparently not well liked, and over the years it was allowed to become overgrown with plants. One day, a construction truck "accidentally" knocked down the sculpture and destroyed it. We eventually worked out a deal where the city gave the sculptor a new commission, but it is not clear whether the conduct in question would have been considered by a court to be gross negligence or merely ordinary negligence.
Despite the drawbacks, the destruction provision in VARA is a major improvement over most other countries' moral rights laws. While those laws generally prevent distortion, mutilation and the like, the authorities are divided over whether the droit moral prevents destruction. The reason for this uncertainty is that the original underlying rationale for the droit moral was protection of the artist's integrity as an artist. Distortion of a work could result in a misrepresentation of the artist's conception, but destruction does not result in such a misrepresentation since the work no longer exists. VARA removes that uncertainty in the United States by explicitly covering destruction.
What can be done about a violation?
- The artist can sue for an injunction (a court order) to prevent the destruction or mutilation if it hasn't yet occurred, or for money damages, including possible punitive damages and attorneys fees, if the damage has already been done.
What about murals and other art attached to buildings?
- This is complicated, but generally speaking, if the work can be removed from the building without damaging the building or the artwork, then the building owner must notify the artist and give the artist an opportunity to remove the work at the artist's expense within 90 days of receiving notice. (This provision may become known as the "droit mural").
So what could Sutherland have done? As noted above, under the droit moral it is not clear, because the authorities are divided over whether it prevents destruction. But destruction is specifically covered under VARA, so if Sutherland had made the painting in the United States and had known that Lady Churchill was planning to destroy the painting, he could have brought a lawsuit to obtain an injunction preventing her from doing so.
To win, though, he would have had to prove that the painting was one of "recognized stature" ... and considering how Sir Winston felt about the way his own stature appeared in the portrait, Sutherland's case might well have ended up down the drain.
© 1995 Nicholas A. Carlin
