A heated debate is emerging in the copyright world this week; can an artist’s moral rights be infringed merely by placing an object next to a sculpture.
The context of the debate is the legal claim made by the sculptor of the “Charging Bull” sculpture, in Manhattan’s financial district. The artist believes that allowing the sculpture of “Fearless Girl” to be positioned directly in front of his work infringes his rights as an artist. He feels that the recent placement of “Fearless Girl” opposite the “Charging Bull”, first installed in 1987 after a stock market crash, transforms his work’s message from a positive, optimistic one (about the economic resilience of the US) into a negative, ominous message of fear and oppression. He also claims that his reputation is prejudiced by the transformative positioning of the two sculptures.
This debate poses the questions, what are moral rights and what would happen if a situation like this arose in Canada?
Our Copyright Act contains moral rights provisions that protect an artist's right to the integrity of the work and the artist's right to create the work under her or his own name, pseudonym or anonymously. The integrity of the work is infringed if it is to the prejudice of the honour or reputation of the artist; distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution. It is not an infringement of the moral right in a work to physically change the location of the work or to restore or preserve the work in good faith.
Moral rights can be waived in whole or in part, but cannot be transferred using an assignment or license. They last for the same length of time as the better known economic rights under copyright law. Upon the artist's death, the rights pass to those to whom the work was bequeathed.
The most famous moral rights case in Canada is the 1982 Eaton Centre case, involving sculptures of 60 Canadian geese hung in a shopping mall. The mall owner decided to attach Christmas ribbons to the necks of the geese and the artist sued. The court agreed that the ribbons should be removed because they were prejudicial to the honour and reputation of the sculptor.
One could well imagine a situation here in Halifax should the iconic “Wave” sculpture on the waterfront be juxtaposed with another work which altered its message and prejudiced its creator. How about the historic “Evangeline” sculpture in Grand Pre? Or, what if the Cow Bay “Moose” sculpture had another sculpture (e.g. a hunter) placed in front of it? The possibilities are endless.
The Wall Street sculpture debate will not be resolved any time soon, but it raises fascinating issues about the integrity of a work of art and how an artist’s rights can be infringed when her or his honour or reputation is prejudiced.