Moral Rights

Recent Moral Rights Legislation

In December 2000, the federal government passed legislation that awarded artists moral rights in their work. This legislation gives artists the right to take action if they are not acknowledged as the creator of their work, or if their work is falsely attributed to someone else.

Moral rights also include the right to take action if their work is treated in a derogatory way. This includes treatment that harms the integrity of the work, or the artist’s honour or reputation. Such treatment could include, for example, destruction, distortion, mutilation and alteration of the work, or exhibiting the work in a manner or place that is prejudicial to the artist’s reputation. The introduction of moral rights legislation was celebrated as a significant achievement for creators of all kinds of artistic works, including visual arts.

Moral rights legislation raises many issues for all those involved in the care and presentation of artworks. An artist’s right to have their work correctly attributed means that artists must always be acknowledged as the creator of work when it is publicly displayed. While this is standard practice in professionally operated galleries or museums, it has not always happened when artworks are displayed in other contexts, such as in the foyers of commercial buildings.

In most cases, moral rights to an artwork last for the life of the artist, plus 50 years. Unlike copyright rights, moral rights cannot be transferred to another person until the artist’s death when the artist’s legal representative assumes responsibility for them.

Moral Rights – Possible Applications

In the period leading up to and including the introduction of moral rights legislation there were many examples cited in the media of cases to which moral rights legislation might have applied. Some of these involved alterations being made to works – such as the colours in a painting being changed to suit home décor, or the top of a sculpture being cut off to fit into a building foyer.

Moral Rights – The Vault Issue

Some commentators speculated that if the legislation had been in place in 1978, it might have allowed Ron Robertson-Swan to take action against the Melbourne City Council for derogatory treatment of his sculpture, The Vault. After commissioning this work for the Melbourne City Square, the council moved the sculpture to a location which, at the time, was effectively not much more than a building site. Under the current legislation the artist would at least have had the right to be notified of the council’s intention. He would also have had the opportunity to document the work before it was moved, and the right to not have his name displayed with the work in its new location if this was his wish.

Moral Rights – Freedom of Expression Issue

Artists have often challenged accepted conventions and values to communicate ideas and there has been some concern that moral rights legislation might hamper freedom of expression. It is interesting to consider whether there are instances where the altering or destruction of an artwork is an acceptable way of creating a new artwork.

An example is a work by the American artist Robert Rauschenberg that was made by erasing a drawing by another artist, Willem de Kooning. Rauschenberg spent over a month erasing the drawing. He then wrote ‘Erased de Kooning Drawing, 1953’ on the work, put it in a gold leaf frame and presented it as his own work. Rauschenberg had been interested in the idea of ‘creating’ works by erasing for some time. However, he was not satisfied with the idea of erasing his own work. He particularly wanted to create a work by erasing the work of an artist who was widely considered to be a ‘great artist’. It is important to note that in this case, Rauschenberg had the support of De Kooning for this project.

Robert Rauschenberg – Erased De Kooning Video

The recent Australian moral rights legislation does include provision for artists to alter the work of other artists, under certain conditions, with the consent of the artist who created the work. Such legislation would therefore not have prevented Rauschenberg creating his work, which is considered by the artist and others to be an important work. It would, however, raise issues for an artist who wanted to create such a work without the permission of the artist whose work was being destroyed or altered, such as the following case cited involving Subdivision Art.

Moral Rights – Subdivision Art Issue

Another case that raised issues related to moral rights involved a group of Australian developers called ‘Subdivision Art’ who purchased an original Picasso print for $13,000 and cut it up into 200 small pieces to be sold separately, at a profit, for $200 each. There was international indignation at the destruction of a Picasso print for commercial purposes and profit, interestingly however, this gesture may have been more acceptable if it had been presented as an artwork. As an artwork, this gesture could have commented on the commodification of artworks, especially the commodification of artworks by artists such as Picasso.

Portraits of Picasso Video

Moral Rights Peter Corlett

The issue of conservation and moral rights was raised in 2003 in a dispute between the city of Yarra and sculptor Peter Corlett who had been commissioned to by the council to create and erect a public sculpture called ‘Mr Poetry’. The City of Yarra was the owner of the work. In 2003 the council rust proofed the work without consulting Corlett. Corlett claimed that his intention was that the work was to rust naturally and that the rust treatment made it look like a dirty chocolate brown and wrecked the artistic integrity and intention of the work. Even though there was no actual court case the City of Yarra agreed to remove the rust proofing treatment.

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