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Jeff Koons, the contemporary artist who recently lost a ‘moral rights’ case. Photo: Shutterstock.com.

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What are ‘moral rights”? It’s a topic that was central in the recent plagiarism case against Jeff Koons and the Pompidou Centre in Paris, brought to the French courts by Claude Bauret-Allard, the widow of photographer Jean-François Bauret in March this year.

Mme Bauret-Allard claimed that Koons’ sculpture Naked was based on one of her late husband’s photographs. The Pompidou Centre was joined in the proceedings because it had included pictures of the work in a catalogue and promotional material (although never actually displayed it in its galleries).

The widow’s claim was successful and the Pompidou Centre and Koons were together ordered to pay damages to Bauret’s family.

This case partly concerned the protection of the Jean-François Bauret’s moral rights as an artist.

In the UK, moral rights are included in the Copyright Designs and Patents Act 1988 (the Copyright Act). Moral rights in this act give the author of a copyright literary, dramatic, musical or artistic work, or the director of a copyright film, the right to be identified as the author or director of the work.

The author or director also has the right not to have their work subjected to ‘derogatory treatment’.

Treatment in this context is defined as “any addition to, deletion from or alteration to or adaptation of the work” and will be derogatory if “it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director”.

This means that, even if an author has assigned the copyright of their work, the new owner of the copyright cannot treat this work in a ‘derogatory’ way.

One lesson from this case is to beware if you purchase a piece of art and are inspired to customise it. You may unwittingly be infringing the artist’s moral rights.

“The artist or author has the right not to have their work subjected to ‘derogatory treatment’

France was where the concept of moral rights all commenced. In this particular case, the French court found that Koons deliberately failed to properly credit Bauret with authorship of the work.

A second lesson is that if you want complete control over the work that you purchase, you may want to try and extinguish the artist’s moral rights (as well as obtaining assignment of the copyright).

But there surely cannot be many artists that would agree to this, and why should they?

Artistic concept

But how far can the definition of derogatory treatment be taken? Could it be expanded to include the treatment of the concept behind a work of art? This has recently been explored in America, following the unveiling of Kristen Visbal’s sculpture Fearless Girl in the financial district of Manhattan.

The sculpture is placed so that the young girl appears to be boldly confronting the subject of a nearby sculpture Charging Bull by Arturo di Modica which has been in the same position since 1989.

Di Modica claims that the integrity of his piece is affected by the placement of the new sculpture and that his original artistic intention has been distorted. The interplay between the bull and the girl is now a key part of the viewer’s experience, whereas previously the bull was viewed as a work in its own right. Di Modica believes this is an infringement of his moral rights.

This case has not yet been taken to court. But it does make one wonder would it be possible for artists to use legislation designed to protect their moral rights to control the context in which their works are displayed? Imagine the practical difficulties that this might create for curators, galleries, auction houses and other exhibition spaces. And perhaps even for private collectors.

Churchill, his portrait and an ‘act of vandalism’

In the UK, a famous incident involved a portrait by Graham Sutherland of Sir Winston Churchill. The portrait was commissioned by the Houses of Parliament to give to Churchill on his 80th birthday.

He did not like it much and Lady Churchill apparently hated it so much she destroyed it, which Sutherland reportedly viewed as ‘an act of vandalism’.

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Sir Winston and Lady Churchill. Photo: wikimediacommons.

There was much debate about the quality of the work and whether Lady Churchill – if indeed it was her – should have been allowed to do as she wished with it with complete impunity.

In English law, destruction of a work – as opposed to ‘distortion or mutilation’– is not covered by legislation. In France, on the other hand, one should avoid destroying a painting of a living artist, because France is one of the few countries where moral rights legislation does preclude destruction.

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Milton Silverman is Senior Commercial Dispute Resolution partner at Streathers Solicitors LLP, London.

Research by Rachel Gubbins, assistant solicitor at Streathers.