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North America
This page considers moral rights litigation and controversies
in the United States and Canada.
It covers -
USA
In 2007 US federal judge Michael Ponsor ruled that the
Massachusetts Museum of Contemporary Art (aka Mass MoCA)
had the right to exhibit an unfinished installation by
Swiss artist Christoph Büchel. Ponsor ruled that
display would not violate Büchel's rights under the
1990 Visual Artists Rights Act, essentially because the
legislation lacked a provision to prohibit exhibition
of an unfinished work of art on the basis that it is unfinished.
Mass MoCA
could exhibit the installation subject to visitors being
alerted that the work was "not completely realized".
During the following year Robert Rauschenberg sued Robert
Montgomery (aka Robert Fontaine), claiming violation of
his rights under VARA. Montgomery allegedly sold works
purportedly by Rauschenberg, with certificates of authenticity.
Fontaine argued that there had been no violation, because
Rauschenberg created the disputed work. Montgomery found
several works in Rauschenberg's garbage in 1998, some
of which were later sold. Montgomery denies that diluted
Rauschenberg's name or prejudiced his reputation, arguing
that the claims are invalid because Rauschenberg "is
the author" of the works and because any damage was
attributable to the artist's "own reckless, negligent
or culpable conduct". He asked "Why does the
lion want to eat the mouse?"
The same year saw Los Angeles artist Kent Twitchell settle
a VARA lawsuit against the US government and 11 other
defendants for painting over his six-storey 'Ed Ruscha
Monument' mural. The US$1.1 million settlement, believed
to be the largest awarded under VARA or the California
Art Preservation Act, includes US$250,000 from the federal
government and US$850,000 from contractors and subcontractors
responsible for managing and maintaining the government
building which formerly featured the mural.
Canada
One of the most widely noted moral rights cases is that
involving action by sculptor Michael Snow regarding Flight
Stop, a work comprising 60 bronze geese aloft in
the atrium of the Eaton Centre, a major Toronto retail
mall. As part of the centre's 1981 Christmas decorations
a red ribbon was tied around the neck of each sculpture.
No permanent harm or change to the sculpture was intended.
Snow claimed that the ribbons were prejudicial to his
honour and reputation, constituting the requisite "distortion,
mutilation or other modification" under the Canadian
legislation. In Snow v Eaton Shopping Centre et al
(1982, 70 CPR 105 (2d) 105 (Ont. HCJ) he obtained a judicial
order requiring that the "ridiculous" ribbons
be removed.
Justice O'Brien of the Ontario High Court of Justice held
that "prejudicial to honour and reputation"
involves a subjective element or judgment on the part
of the author, appropriate as long as it is reasonably
arrived at. O'Brien noted that Snow was respected within
the international artistic community. After considering
his opinion and that of other recognised artists it found
that his concern for his reputation was reasonable.
In the 1995 Prise de Parole Inc. v. Guerin, Editeur
Ltee decision, upheld in 1996 (FCJ No. 1427 (FCA),
the Federal Court dismissed an action over publication
of extracts of a work - ironically titled La vengeance
de l’original - in incorrect order, thereby
changing the plot. The Court held that the change was
not to the prejudice of the author's honour or reputation.
The subsequent case of Théberge v Galerie d'Art
du Petit Champlain Inc. (2 S.C.R. 336, 2002 SCC 34)
in the Supreme Court of Canada illustrated perceived conflicts
over the notion of moral rights in Canada's civil law
and common law traditions.
The Galerie d'Art du Petit Champlain acquired rights to
make a small number of paper reproductions of art by Claude
Théberge. However, it transferred ink from Théberge's
paper-based works onto canvas, in doing so destroying
each paper version. Théberge gained a pre-trial
order seizing the resultant canvases.
Some judges on the Supreme Court held
that there was no reproduction, because no 'copies' were
made (transfer of ink was considered a modification rather
than a copy). They criticised Théberge for preemptive
action, commenting that
evaluation of a potential breach of moral rights calls
for the exercise of a good deal of judgment. A distortion,
mutilation or modification of a work is only actionable
if it is to "the prejudice of the honour or reputation
of the author". The artist or writer should not
become the judge in his own cause on such matters
They
also criticised him for trying to make a moral argument
in an economic dispute, commenting that "once an
authorized copy of a work is sold to a member of the public,
it is generally for the purchaser, not the author, to
determine what happens to it". The dissenting judgements
interpreted the legislation as a mechanism for protecting
the rights of artists, necessitating a broader interpretation
of "reproduction". The case is discussed in
Patricia Akester's 'Comment on Théberge v. Galerie
d'Art du Petit Champlain Inc' (2003 34:7 International
Review of Industrial Property & Copyright Law).
In the 2003 case of Ritchie v. Sawmill Creek Golf
& Country Club Ltd. et al. (35 C.P.R. (4th) 163
(Ont. Sup. CJ Div. Ct.) a photographer sued Sawmill Creek
resort for copyright infringement after it used his photographs
on its website.
He had made those photographs on a speculative basis and
presented them to the resort owner as a gift, with the
owner subsequently refusing to commission the photographer
to redevelop the site. The photographer argued that the
resort then infringed his moral rights by enlarging the
photographs without his permission. He gained no satisfaction
in calling on the Royal Canadian Mounted Police to remove
the images - the Mounties apparently concentrated on getting
their man, rather than chasing moral rights claims.
Justice Ducharme of the Ontario Superior Court of Justice
found
no distortion, mutilation or other modification that would
cause prejudice to the photographer's honour or reputation.
It noted that his claims were not supported through opinions
provided by his peers.
In 2006 noted Canadian artist Haydn Davies sued Lambton
College of Applied Arts & Technology in Ontario Superior
Court for C$1.2m over its 2005 destruction of his laminated
cedar sculpture Homage. That work, some 9.3 metres
long, was commissioned in 1974.
Davies claimed that the college had violated his moral
rights under the Copyright Act and breached an obligation
to maintain the sculpture. He sought costs associated
with the suit, return of remaining pieces of the work
and restoration "to its original condition at location
of Davies' choosing".
studies
For Canada see standard texts on the Canadian copyright
regime, highlighted in the Intellectual Property guide
elsewhere on this site, such as David Vaver's Copyright
Law (Toronto: Irwin Law 2000) and Canadian Legislation
on Intellectual Property (Toronto: Carswell 1998)
by Ysolde Gendreau & Ejan Mackay.
For the US regime see Edward Damich's 'The Visual Artists
Rights Act of 1990: Toward a System of Moral Rights Protection
for Visual Art' (39 Catholic University Law Review,
1990), Monroe Price's lucid Resuscitating A Collaboration
With Melville Nimmer: Moral Rights & Beyond (PDF),
Robert Gorman's 'Federal Moral Rights Legislation: The
Need for Caution' (14 Nova Law Review, 1990)
and 'Visual Artists Rights Act of 1990' (38 Journal
of the Copyright Society of the USA, 1991), Russ
VerSteeg's 'Federal Moral Rights for Visual Artists: Contract
Theory and Analysis' (67 Washington Law Review,
1992) and William
Landes' 2001 paper What Has the Visual Arts Rights
Act of 1990 Accomplished? (PDF).
The Serra dispute features in Art in the Courtroom
(Westport: Greenwood 1998) edited by Vilis Inde.
next page (moral
rights cases in Australia)
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