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8. The Moral Rights of the Visual Artist
The principles of moral right involve some of the most important issues facing Australian
artists today. But they are widely misunderstood, even by artists. This chapter introduces
the major aspects of the moral right: the right to create, the right to artistic integrity, the
right of disclosure, and the right of attribution. It discusses overseas legislation which has
conferred these sorts of rights upon artists and provides a contractual means by which
artists, hypothetically, may enjoy such protection in Australia.
The motivation for creation may differ from artist to artist and indeed between works of
the same artist, but once the work is complete and ready for its public, it is a matter of
massive concern to all artists that from the moment of delivery, the character, intent and
effect of the work is totally dependent upon the circumstances, will or whim of its new
possessor. As Mark Rothko observed in 1949:
“A picture lives by companionship, expanding and quickening in the eyes of the
observer. It dies by the same token. It is therefore a risky act to send it out into the
world. How often it must be permanently impaired by the eyes of the unfeeling
and the cruelty of the impotent who would extend their affliction universally”: The
Legacy of Mark Rothko (Penguin), p. 27.
The fact is that artists conceive of their own artworks as something superior to mere
chattels (more on a plane with the family dog . . . a knowing, feeling existence, but not
quite up to eating at table). Many non-artists share the “super-chattel” theory and treat
their artworks with care, if not homage. Others don't give a damn. And why should they?
Let us take four examples of art violation and compare them with hypothetical examples
of perhaps analogous outrage.
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(1)(a) Dissatisfied with his work, an artist slashes a painting and throws the remnants in
the garbage. Years later the painting appears at auction, reassembled, glued together and
described as being the work of the artist.
(b) During a domestic clean-up a householder discards the rusting remnant of a bicycle. A
child rescues the bike from the heap and after spending weeks doing it up, now attempts
to sell it. The householder objects to his garbage being recycled.
(2)(a) A sculptor wins a competition to design and construct a sculpture for an inner city
public square. After installation there arises controversy over the work and the city
council votes to relocate the sculpture on an alternative site -- one considered highly
inappropriate by the artist.
(b) An architect designs a house and supervises its construction. Some years later the
owner decides to build apartments on the land and transports the house to another block
of land. The architect considers the new site to be inappropriate for the house.
(3)(a) A painter creates a mural featuring nude figures. Although the wall owner initially
likes the work he succumbs to the sneers of his peers and hires another painter to clothe
the subjects. The wall owner refuses the artist permission to remove the signature from
the mural.
(b) A couple retains an interior designer to redecorate their house. They love the effect of
the pink and yellow walls, but their friends start referring to their home as the “Waldorf
Hysteria”. So they hire a tradesman to repaint the walls a more socially acceptable beige.
The designer considers that the change has “completely destroyed the vision” and wishes
to dissociate himself from the project. However when House and Glory magazine features
the house, he is named as the designer.
(4)(a) An artist is commissioned to design and create a 2,000 square yard sculptural
garden. Shortly before completion of the huge task, the company decides to turn the area
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into a car park and concretes over the mosaic. A year's work is wasted, the piece is
destroyed, but the artist is paid in full.
(b) A municipal body has a swimming pool designed and built. Because of rising running
costs it is decided to fill the pool with soil and plant a flower clock in it. The swimming
pool company is angry because the pool had been a fine example of their workmanship.
Each of the above art violation cases attracted world-wide controversy, but their
counterparts, if they ever do occur, will be lucky to gain more than a few centimetres in
the local newspaper. One promotes anger and a desire to repair the loss whilst the other
promotes little more than a shrug of the shoulders. Why the distinction? At risk of being
convicted of elitism, perhaps it is because one concerns “the arts” and the other does not.
Fortunately, it is not necessary to rest the case for moral rights upon such ethereal tenets.
To argue for such rights is not to deny that other sections of the community may have
needs. Rather it is a recognition of the piecemeal nature of legal reform and development.
And it is a recognition that if laws are to provide practicable protection they must be quite
specific in their support. Along with authors, composers and practitioners of other arts,
visual artists can demonstrate that, as a group, they have need of particular legal
protection -- and the overseas experience shows that such legislation is both feasible and
valuable.
What are Moral Rights?
The term “moral rights” comes from the French terminology -- “droit moral”. It is
somewhat of a misnomer, but as it is already in common usage it seems futile to search for
a more accurate alternative. Moral, in this sense, has nothing to do with what is good and
proper; it merely distinguishes these non-pecuniary rights from traditional property rights
-- rights which protect pecuniary interests.
This chapter will describe four of these rights:
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• the right of integrity: the protection of one's work from alteration, mutilation and
distortion;
• the right of disclosure: the right of the creator to determine when a work is complete
and when it should be revealed to the public;
• the right of attribution: the right to have one's name associated with one's work;
• the right to control the public exhibition of artwork.
These are based on the assumption that the reputation of an artist is directly related to his
or her work, and as all persons have a right to guard their honour and reputation, artists
must have the power to protect their work and thus themselves. Further, it can be argued
that society, in a very real sense, has an interest in the protection of its cultural life and
heritage and that this interest requires that both artist and product be accorded a
professional and aesthetic respect.
A. THE RIGHT OF ARTISTIC INTEGRITY
The right of artistic integrity may be described as the protection of the artist's reasonable
expectation that subsequent owners of an artistic work will ensure that it be maintained in
the manner and form intended by the artist. This includes protection against alteration,
proper maintenance and to a limited extent, exhibition in a manner that is respectful to the
work.
1. Protection from Alteration, Distortion and Mutilation
An artwork may be altered as to its colour, form, content and materials. As the law
presently stands, the owner of a work has an absolute freedom to make such changes, for
such a freedom is concomitant with the traditional legal view of property rights. There are
many examples of the effect of this stance.
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(a) Colour
David Smith, an American sculptor of international reputation, created a work entitled
“17 h's” which he carefully painted with six coats of cadmium red and aluminium
powder. The piece was sold to a dealer who in turn sold it to a collector. Thereupon, the
work was taken to a foundry and stripped back to the metal. That's how the collector liked
it, so that's how he had it. Smith was furious but legally powerless. He wrote letters to art
magazines disowning the work (see (1960) 59 (Summer) Art News 6), but this was a mere
gesture. The work still languishes under his famous name, and one day will be sold under
that name.
(b) Form
Bernard Buffet had painted the panels of a refrigerator and donated the work to an
auction for charity. The piece was purchased by a dealer who decided to cut up the fridge
and sell off the separate panels. Buffet heard of the plan and obtained a court order to
prevent the sale of the mutilated work. Had this occurred in Australia, the artist would
have been powerless to prevent the injury to the artwork; nor would he have been able to
prevent the sale of the bastard parts.
A large wall hanging by Mona Hessing was severely damaged by water. The work was
insured and the company agreed to write off the work. Some time later, the insurers put
the ruined piece up for auction. It still bore the artist's name and was offered as an
example of the artist's work.
When Margel Hinder was commissioned to design the “Captain Cook Memorial
Fountain” in Newcastle, she met with enormous problems from the city council. Changes
were made to the work without the permission of the artist, including its manner and
colour of lighting -- an integral part of the sculpture.
Similarly, Robert Woodward's fountain in Chifley Square, Sydney, was improperly and
incompletely installed and has subsequently been planted out by shrubs and other plants.
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The council's Parks and Gardens Manager is reported to have commented that the work
“looks fine; probably better than it originally looked”. The artist's opinion, also a matter of
record, is somewhat different.
Annette Bezor was commissioned to create two works by the South Australian
Government. The artist is well known for her treatment of the frame as an important part
of her work and wished to include a clause in the commission contract prohibiting the
removal or alteration of the frame. The commissioner refused to agree in writing to such a
restriction although verbal assurances were given. Subsequently, a high ranking public
servant ordered that the original frames be removed and replaced by more restrained
aluminium ones. The work was repaired only after considerable public pressure had been
exerted. Certainly the artist had little legal recourse for this abuse of her work.
(c) Content
There are many examples of owners interfering with the content of artworks. Perhaps the
most famous is Michelangelo's experience in the Sistine Chapel. The “Rocky Island with
Sirens” case in 1912 also concerned the later addition of clothing, but the artist who
performed the alterations to the German painting has apparently avoided the eternal
infamy that has been accorded Michelangelo's “breeches maker”. There is no procedure
under Australian law by which artists could prevent such abuses of their work.
This was shown when Lawrence Beck had been commissioned to sculpt an environmental
work for the foyer of the National Mutual Building in North Sydney. Some time later the
building owners decided to remodel the foyer and in doing so covered much of the work
with mirrors.
A prominent collector asked the late William Fletcher to alter a painting of a circus scene
by painting out a horse's tail. The artist refused. After his death a book was published on
the artist and during the research for that book it was discovered that the collector had
taken the tail into her own hands. In place of the tail is a white fog.
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A well known West Australian artist had a collector who, it was discovered, had bought
half a dozen of his not inexpensive works, covered them with reddish polka dots and
sandpapered his signature off so that she could sign them herself (in the same red paint).
She was delighted that she had been able to match the red of the dots with her newly re-
upholstered couches and could not understand the artist's anger. He had no legal remedy.
Some years ago, the State Gallery of Western Australia was given a painting by Brett
Whiteley entitled “American Dream”. Small portions of the work included
representations of sexual organs and sexual activity. The then chairman of the gallery
board, for reasons that can only be assumed, ordered a member of staff to paint out the
offending sections. Fortunately, the junior conservator charged with the task used
conservational techniques which allowed the work to be restored to its original condition
at a later date.
Sharon Davson was commissioned to paint a work for the foyer of a large office building
at 80 William Street, Sydney. The artist was complimented when the managing director
decided to hang the work in the reception area of his private offices. When the artist went
to photograph the work, she discovered that the company's art director had ordered
picture framers to cut more than 30 centimetres of canvas from the top of the work and
over 20 centimetres from its side, without her knowledge or consent. The carefully
planned composition, perspective and colour balance had been destroyed.
The artist contacted the company and offered to repair the work for a fee or to be allowed
to remove her signature from the work. She received no reply from the company. She had
no legal recourse and the work, still bearing her name, remains in its mutilated and
distorted state.
(d) Material
Terry Fugate Fox is an American artist who creates geometric sculptures from different
metals. They are intended to be continuing works in the sense that the chemical and
molecular interaction of the disparate materials will eventually result in their fusion. One
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such piece, entitled “7000 A.D.” consists of two identical trapezoids that are bolted
together. One trapezoid is made of lead, the other of gold. The artist had purchased the
gold, some 50 ounces of it, in the good old days before gold was “gold”. A collector
bought the work for $4,000, but when the price of gold rose sharply, the collector decided
to realise his investment. He gave the piece to a metals dealer who blowtorched the metals
apart. Fortunately the artist heard of this, and was able to find another collector who was
prepared to buy the sculpture for its metal value ($6,500), and the artist was thus able to
restore the piece to its wholeness. (One wonders whether the good samaritan collector, a
Wall Street broker, was tempted to buy himself a blowtorch when gold later hit even
greater heights!)
2. Destruction of Artworks
Very few of the jurisdictions that have enacted moral rights legislation have seen fit to
protect works of art from that ultimate mutilation -- destruction. Even the French, so long
leaders in the field, have stopped short of that. And yet it would seem to be such an
obviously desirable objective.
For example, take the Crimi mural; painted in a church in the United States, the work was
one of the largest frescoes to be painted in the Renaissance manner. Eight years after its
completion the commissioning body decided to paint the walls with two coats of buff over
which was layered a lattice motif. In spite of court battles the work remains covered, if not
destroyed, because the law did not provide the artist with the machinery to protect one of
the most important examples of his life's work.
Another example is the destruction of Graham Sutherland's portrait of Sir Winston
Churchill. The latter's widow is said to have destroyed it because her husband had not
liked it.
And then one can point to the historically important Sydney sculpture by Margel Hinder
which was removed from the front of the Western Insurance Building and cut into 14
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pieces. The work was rescued from the scrap-yard by virtue of good luck and the
enormous efforts of individuals. It now has pride of place under the State Offices Building
but its resurrection was not assisted by the law.
The list is a very long one.
To enact a law that would protect artworks from destruction would be to attempt the
ultimate interference with traditional property rights; that is, the right to say whether a
thing should be allowed to exist or not. However, it is difficult to conceptually
differentiate between the alteration and distortion of a work and the destruction of the
piece. It may be argued perhaps that the altered work continues to misrepresent the artist,
whereas the destroyed work does not; but such an argument is demonstrably
misconceived.
The need for such protection is difficult to reconcile with traditional property rights, but
when one is faced with the destruction of a celebrated work of art, one asks rhetorically:
“How could they have destroyed a work like that? Why isn't there a law to stop them?”
3. Maintenance and Conservation
If society deems important the creative expression of its artists, it must ensure that
artworks are maintained in a state that respects their creators' intentions. The need for
maintenance and restoration may arise in many ways: the work may be accidentally
damaged; it may be adversely affected by the climate in which it is exhibited; it may be
vandalised by hammer or spraycan. But whether the damage flows from accident, clime,
or philosophy, doesn't matter. The important thing is that the work says what its creator
intended it to say, and that meaning may be presumed only if the work is maintained in
accordance with the artist's intentions.
Of recent years, the deliberately self-destructive nature of some artwork poses an ethical
dilemma to galleries and collectors: should they allow the piece to, say, decompose, melt
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or blow away? Or should they adopt measures which will suspend the destruction so that
a much larger public can view the work? When a gallery purchases a work constructed
from rotting vegetable matter, encases it in glass and vacuum seals it so that its very
method is frustrated, we are presented with more than a delightful irony: it illustrates a
serious intellectual and legal dichotomy between the rights of ownership and the rights of
self-expression.
Conservators
The doctrine of moral rights is significant to conservators for it adds an extra dimension of
responsibility to their professional life. Most codes of ethics emphasise that the primary
duty of the conservator is to the object and its “aesthetic, historic and physical integrity”.
(As well, it must not be overlooked that most conservators will at some time experience
commercial pressure to comply with requests from their owner clients which are at odds
with their ethical obligations.)
Nevertheless, the debate over the introduction of moral rights is not one that should cause
great concern to professional conservators and restorers. Their liabilities are not greatly
expanded by moral rights legislation.
Already, if the owner of a work gives it to a conservator for cleaning and repair or
restoration, the conservator is a bailee for reward. This means that the conservator owes
the owner a duty of care and will be liable if, as a result of negligence, the owner suffers
consequential loss. That remains the case in countries with moral rights legislation.
However, in those countries, the conservator would also owe a duty to the artist. That is,
the artist would have an action against the conservator if the conservator altered,
mutilated or distorted a work.
So that this does not work unfairly on conservators the legislators have taken into account
the exigencies and perils of the profession. For example, the Californian Act specifically
deals with conservation, restoration and framing. If specialists are to be liable under the
Californian Act they must do something that is grossly negligent. Mere negligence is not
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enough. Gross negligence is defined in their Act as “the exercise of so slight a degree of
care as to justify the belief that there was an indifference to a particular work of fine art”.
In New York, conservators are expressly excluded from liability under the Act, unless
they are negligent. New York does not provide a definition of negligence and it may be
assumed that “mere” negligence would suffice. This is basically the same standard of care
as is laid down in most conservators' codes of ethics.
Conservators who are reputable and of high professional standard take into account the
intentions of the artist (whether the artist is alive or long dead). Given this, together with
the expected statutory exceptions, Australian moral rights legislation will simply mean
that if the usual professional standards are not met, the conservator may be liable to the
artist as well as to the owner.
B. THE RIGHT OF DISCLOSURE
The right of disclosure gives the artist the absolute right to decide if a work is complete
and whether or not it should be revealed to the public.
One of the most famous cases concerning completeness was that of Georges Rouault. In
1917 he had entered an agreement with his dealer, Ambroise Vollard, by which he
contracted to pass over all of his output in return for a fixed stipend. It was a term of the
agreement that the works would not be considered finished, and thus liable to be
delivered to the dealer, until they had been signed by the artist.
Vollard died in 1939. In his gallery were found 806 unsigned canvases by Rouault. The
artist had a key to the storeroom and from time to time would work on the paintings,
signing them when he was at last happy with them. Naturally enough, the heirs claimed
ownership of the work, but Rouault claimed that they were unfinished and that the sale of
his unfinished work would be detrimental to his professional reputation. Thus he sought
recovery of the paintings.
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Under the terms of the contract, it was indisputable that the works were incomplete for
the artist had not signed them. Thus the court held that they should be returned to the
artist because the moral right demanded that the artist alone should determine when a
work is complete, and in this case he had not indicated that completion in the manner
agreed to by the parties.
In addition to determining when a work is complete, the artist should have the right to
decide whether or not it should be released. By way of example, the problem arose when
Camoin, after finishing a number of canvases, decided that they should not be divulged,
slashed them, and threw out the pieces. Some enterprising person gathered up the
remnants, reassembled them and ten years after their rejection by the artist, offered them
for sale. Camoin went to court.
On the basis of the artist's right to determine whether a work should be disclosed at all
(and if so, when), the court found in favour of the artist and ordered the seizing and
destruction of the paintings in accordance with Camoin's original and obvious intention.
The Camoin case is French, but there is precedent for the right of disclosure in our own
legal system. In 1849 Prince Albert brought an action against a would-be exhibitor named
Strange. His Royal Highness had made a number of etchings that were never intended for
public view. By quite improper means, the defendant Strange obtained copies of the
works and sought to exhibit them and sell a descriptive catalogue of the works. Prince
Albert successfully restrained the defendant.
The court held that the publication of the etchings in this way was in violation of trust
(between the artist and the printer) and therefore could be prevented. Furthermore, the
legal right of the plaintiff to preserve the privacy of his unpublished works was so clearly
infringed by the publication of the catalogue as to entitle him to protection by injunction:
Prince Albert v. Strange (1849) 1 Mac. & G. 25; 41 E.R. 1171. Lawyer readers will be aware
that this case is the common law root of the law of confidentiality. It has been developed
in such a way as to provide little.
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The right of disclosure is not likely to be introduced into Australia. Its precepts are too far
removed from those of the common law and in any event, its need has perhaps not been
sufficiently established in Australia. However one recent local case provides an interesting
example of its application. An artist and his wife were divorcing and the not uncommon
fight over property was being waged. The artist had retained a large number of works
during his professional life which were sketches, unfinished works, unsuccessful works,
indeed a range of works which were of personal (and perhaps one day historical)
significance but which were never intended by the artist to be sold. In France, they would
remain private but in Australia their public disclosure sale could be enforced and the
artist's professional reputation thus adversely affected.
C. THE RIGHT TO CONTROL THE PUBLIC EXHIBITION OF ARTWORK
The artist's right to control exhibition is one of the most contentious aspects of the moral
right doctrine. Some moral rights proponents would exclude it on the basis that it
interferes too greatly with the owner's property rights. Others argue that how and when a
work is shown, reflects upon the work and its creator.
Certainly, the time, place and manner of display of an artwork is often crucial to the
successful communication of the artist's intention. One can readily understand the anger
of Ron Robertson-Swann who sees his cityscape sculpture repositioned in the mud of a
suburban children's playground. The artistic intention is thereby subverted and the artist's
professional reputation is consequently disparaged. The city council had the legal right to
do whatever it liked with the piece, and indeed it did. Their property rights sanctioned
their decision to exile the work rather than to send it to the National Gallery or the
university that had offered to display it. But perhaps the artist should have had some say
over the positioning of his piece. After all, it is irrevocably associated with his professional
name.
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Another example of disparagement by exhibition was the dispute between Carl Andre
and the Whitney Museum in New York. The Whitney held an exhibition entitled “Two
Hundred Years of American Sculpture” and included a work lent by Andre. When the
artist viewed the exhibition he considered that his piece had been placed in a position that
was detrimental to his work and reputation. He withdrew the piece from the exhibition.
Undeterred, the museum simply replaced the work with another by him from their
collection. The artist was powerless to do more than protest because the law had
conferred absolute property rights upon the museum owner.
A more recent example occurred when Richard Goodwin won the Royal Blind Society
commission prize for sculpture. His contract contained a clause which gave him the right
to be consulted in the event of relocation of the work. However, the site for which the
work had been specifically created was not owned by the commissioners but by the New
South Wales Government. Thus when various highly placed politicians decided that they
did not like the piece and its relocation was ordered, the contract was unhelpful because
the State Government was not a party to it.
Although exhibition curators may tremble at the thought of the introduction of such a
right in Australia they may take heart from the fact that the right has not prohibited the
art museums of Europe from mounting successful exhibitions for years; and it is unlikely
to be introduced in the near future in Australia. Such legislation is likely to focus upon
“physical” rather than “contextual” integrity. The latter will remain a matter for
consultation between curator and artist and an uncertain amount of give and take.
That protection as to exhibition is feasible, is shown by a Spanish law which provides that
“the transfer of a work of art does not constitute a transfer . . . of the right of public
exposition of the work . . . unless there is an agreement to the contrary”: Intellectual
Property, 10/1/1879, Art. 9. With such a provision the artist at least has an opportunity to
negotiate the various aspects of the public exhibition of the work.
D. THE RIGHT OF ATTRIBUTION
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The introduction of a positive right to proper attribution as the author of the work is one
of the most pressing needs of visual artists.
The right of attribution explicitly gives the artist the power to claim authorship of her or
his work, and declare that a work, purportedly that of the artist, is in fact the work of
another. It also impliedly confers the right to declare that because a work has been altered,
without the approval of the artist, it is no longer to be regarded as the work of the artist.
This is one area of moral rights that enjoys considerable protection from existing
Australian laws. However, there are gaps in the present laws because they are couched in
negative terms; they do not give artists a positive right of attribution, but rather prohibit
various specific actions. Present protection is piecemeal.
1. The Right to Claim Authorship
Problems of this sort are of two kinds: those of non-attribution, and wrongful attribution.
(a) Non-attribution
Under the moral rights doctrine the artist has a right to receive recognition of authorship.
That this reasonable expectation is not realised in Australia can be readily demonstrated
by pointing to the numerous works of public art that bear plaques acknowledging the
donor of the work, the politician who unveiled the work, the local mayor, and even the
town clerk. The name most frequently omitted altogether is that of the creator of the work.
In Australia, attribution (as opposed to wrongful attribution) is not controlled by statute.
It is a matter which can only be ensured by contract. Although it is not always practicable,
the only way that an artist can be sure of obtaining recognition for authorship is to include
that requirement in a contract governing the relationship of the parties. For example,
Vargas, creator of the “Vargas Girls” in Esquire magazine, sued the magazine for not
publishing his signature on the drawings. He argued that he had a right to have it
publicly acknowledged that the work was his, but the court decided otherwise. It decided
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that when Vargas had assigned his rights in the drawings to the magazine, he should have
included an attribution clause as a term of the contract. He had not done so and therefore
could not later force the publishers to do more than the contract demanded of them.
Similarly, Samuel Clemens could not force his publisher to produce a short story with
other than a nom de plume attribution. Although he succeeded in obtaining damages on
other grounds the court held that it had no power to “compel or prevent its publication
with or without his name”: Clemens v. Press Publishing Co. 67 Misc. 183; 122 N.Y.S. 206
(Sup. Ct 1910).
Although these are American examples, the approach of the Australian courts would be
comparable. Under a moral right doctrine, however, the artist would not have to insert a
specific clause in a contract to protect his or her rights of authorship. Statute law would
protect the right to claim that authorship.
(b) Wrongful attribution
The Copyright Act 1968 (Cth) now provides artists with considerable protection against
wrongful attribution. Section 190 reads:
“(1) A person is . . . under a duty to the author of a work not to --
(a) insert or affix another person's name in or on the work, or in or on a
reproduction of the work, in such a way as to imply that the other person is the
author of the work;
(b) publish, sell or let for hire, by way of trade offer or expose for sale or hire, or
by way of trade exhibit in public, the work with another person's name so inserted
or affixed, if the offender knows that the other person is not the author of the work;
(c) do any of the acts mentioned in the last preceding paragraph in relation to,
or distribute, reproductions of the work, being reproductions in or on which
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another person's name has been so inserted or affixed, if the offender knows that
the other person is not the author of the work . . .”
(See, too, s. 192 as to reproductions.)
This provision gives wide protection against wrongful attribution and is an important, if
solitary, example of statutory protection of a moral right in Australia.
2. The Right to Deny an Attribution
Section 190, quoted above, provides artists with a weapon with which they may assert
their authorship, but it is a power given only to the actual author. What about the artist
who discovers that his or her name has been affixed to the work of another? The statute
gives no protection to the artist whose name and reputation has been so abused.
It may be possible that such cases would come within the legal doctrine known as
“passing off”. This permits a person to bring an action against another who causes
damage by misrepresenting the origin of goods for commercial purpose. Although this is
of considerable usefulness, “passing off” is limited in its application. For example, if the
artist is invited to dinner and discovers over her host's table a work that is purportedly by
her, but which she has never seen before, what can she do? She might attack the work
with her knife and fork or in some other way persuade the owner to remove her name
from the work. But as long as its owner did not attempt to sell the work under that name,
no Australian law could help her. But if a true right of authorship were introduced she
would be able to obtain her deserved remedy.
3. Authorship and Alterations
Again, the Copyright Act provides valuable but incomplete protection to artists whose
works are altered. Section 191 reads:
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“Where a work in which copyright subsists has been altered by a person other than
the author of the work, a person is, by virtue of this section, under a duty to the
author of the work not to --
(a) publish, sell or let for hire, or by way of trade offer or expose for sale or hire,
the work so altered, as being the unaltered work of the author; or
(b) publish, sell or let for hire, or by way of trade offer or expose for sale or hire,
a reproduction of the work as so altered as being a reproduction of the unaltered
work of the author, if, to his knowledge, it is not the unaltered work or a
reproduction of the unaltered work, as the case may be, of the author.”
The language may be convoluted but the protection thus given artists is important. For
example, if the Bernard Buffet “Refrigerator case” arose in Australia, the vendor of the
dismembered artwork would have to describe the sale items as “sections” or perhaps
“pieces” of “The Refrigerator”. If the panels were not so described, Buffet could obtain an
injunction to prevent the sale and seek damages. However, this example also illustrates an
enormous shortcoming in the section. It does not really protect the integrity of the
artwork, and it only protects the artist's reputation of authorship in a limited way. It is,
however, better than nothing, and in the protection it provides to prospective purchasers
it is a valuable piece of consumer protection legislation.
One further weakness of the legislation is its failure to include “public exhibition” as one
of the uses giving rise to the duty of proper description. While it is certainly important to
ensure that altered works are so described when published, sold or let for hire, it is surely
vital to the artist's reputation of authorship that works on public exhibition that have been
altered, are clearly described as altered works. To revert to the Bernard Buffet example, if
one of the metal panels were on permanent display in, say, the State Gallery where
thousands of people would see it, should the artist not have the right to ensure that the
viewing public is aware that the exhibit, purportedly representative of his work, has in
fact been altered by someone other than the artist?
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E. MORAL RIGHTS LEGISLATION
There has been considerable agitation for the introduction of moral rights legislation in
Australia for more than a decade. The first concrete sign of effect was the establishment in
1984 of the Copyright Law Review Committee by the Federal Government. The
committee's report was handed down in January 1988. Its members were divided on the
need for and appropriateness of moral rights legislation in Australia. The majority (of one)
argued against the introduction of moral rights: many of its reasons were, at best,
misconceived. At least as far as the visual arts are concerned their reasoning and examples
used demonstrated little knowledge or understanding of the visual arts environment. The
minority view provides far more cogent reasoning and its arguments illustrate the
demonstrable weakness of the majority view.
The committee's deliberations were not restricted to the visual arts but rather, dealt with
all of the arts (including film), and it may be that the arguments of special interest groups
in areas outside the visual arts swayed the majority in its view: see Copyright Law Review
Committee, Report On Moral Rights, January 1988, AGPS, Canberra.
When eventually, Australia does introduce moral rights legislation it is hoped that at least
the right of integrity and the right of authorship will be provided. These are the urgently
needed rights. It is also to be hoped that the legislature has the courage to make them
inalienable and imprescribable so that artists, who so often have such poor bargaining
power, are not forced to waive their rights by contract. (There could perhaps be
exceptions for advertising or trade uses, but the merit of this is arguable. Rather, it may be
preferable to provide an exception for “employee artists”.)
Australia is a signatory of the Berne Convention, an international charter providing
reciprocal copyright protection between member nations. Article 6 bis of that Convention
(1971 Paris revision), is as follows:
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“(1) Independently of the author's economic rights, and even after the transfer of
the said rights, the author shall have the right to claim authorship of the work and
to object to any distortion, mutilation or other modification of, or other derogatory
action in relation to, the said work, which would be prejudicial to his honour or
reputation.
(2) The rights granted to the author in accordance with the preceding paragraph
shall, after his death, be maintained, at least until the expiry of the economic rights,
and shall be exercisable by the persons or institutions authorised by the legislation
of the country where protection is claimed. However, those countries whose
legislation, at the moment of their ratification of or accession to this Act, does not
provide for the protection after the death of the author of all the rights set out in the
preceding paragraph may provide that some of these rights may, after his death,
cease to be maintained.
(3)The means of redress for safeguarding the rights granted by this Article shall be
governed by the legislation of the country where protection is claimed.”
Article 6 bis has interesting and important features:
(1) It recognises that each piece of an artist's work affects that artist's reputation.
(2) Therefore, any interference with the artwork may also have the consequence of
interfering with the reputation of the artist. All professional persons need some
protection against such danger to their livelihood.
(3) The Article tacitly recognises that artists are and traditionally have been in an
inferior bargaining position and therefore require legislative assistance to achieve
the measure of self-protection that stronger groups can obtain by private contract.
(4) It only provides a power to object. After all the artist may approve of the alteration,
or simply not care. The clause does not absolutely forbid interference with the work
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by anyone other than the artist, rather it gives the artist the right to prevent
interferences that he or she considers unacceptable, or if the work has been
irreparably altered, to obtain an award of damages to compensate for any damage
to reputation that might have been suffered.
(5) The creator of a work of art should be able to claim authorship, to say: “You may
own this piece, but you must recognise and permit others to recognise that I am its
creator!” It should be noticed that the clause does not explicitly provide that an
artist may disown a work that is falsely attributed, but one may consider that to be
implicit.
Although a signatory to the Convention, Australia has never enacted legislation to give
effect to this Article -- in spite of the fact that 70 or so other jurisdictions have seen fit to
enact moral rights legislation.
1. The Californian and New York Legislation
The Californian legislation provides an interesting example of one statutory resolution of
the moral rights problem. This Act prohibits the “physical defacement, mutilation,
alteration or destruction of a work of fine art” and gives the artist the right to claim (or
disclaim) authorship of a work.
This approach may be compared with that of the New York State legislation which does
not protect the work itself but rather, seeks to protect the reputation of the artist by
prohibiting the physical display or publication of a work that has been altered, mutilated
or distorted.
The Californian approach seeks to protect the reputation of the artist by forbidding
interference with the work itself whereas the New York approach is to allow any
alteration to be made so long as the altered work is never publicly exhibited or published.
(Thus the Californian approach tackles both rationales for moral rights: the protection of
the cultural heritage and protection of the artist's reputation. The New York one deals
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only with the issue of reputation and indeed, given that the altered work would no longer
be suitable or available for public exhibition, one might well say that the long term
reputation of the artist is nevertheless deleteriously affected.)
Both jurisdictions restrict protection to the visual arts but California has adopted a narrow
definition of fine art which excludes prints, photographs and works created for
commercial use. New York protects prints and photographs so long as they are limited
editions of less than 300 and includes commercial art within its ambit.
California restricts protection to works of “recognisable quality”. New York does not.
In brief, these two jurisdictions have adopted very different approaches to meet the same
needs.
THE CALIFORNIA ART PRESERVATION ACT
(California Civil Code s. 987)
1987. Preservation of works of art
(a) Legislative findings and declaration
The Legislature hereby finds and declares that the physical alteration or destruction of
fine art, which is an expression of the artist's personality, is detrimental to the artist's
reputation, and artists therefore have an interest in protecting their works of fine art
against such alteration or destruction; and that there is also a public interest in preserving
the integrity of cultural and artistic creations.
(b) Definitions
As used in this section:
(1) “Artist” means the individual or individuals who create a work of fine art.
(2) “Fine art” means an original painting, sculpture or drawing of recognized quality,
but shall not include work prepared under contract for commercial use by its purchaser.
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(3) “Person” means an individual, partnership, corporation, association or other
group, however organized.
(4) “Frame” means to prepare, or cause to be prepared, a work of fine art for display in
a manner customarily considered to be appropriate for a work of fine art in the particular
medium.
(5) “Restore” means to return, or cause to be returned, a deteriorated or damaged
work of fine art as nearly as is feasible to its original state or condition, in accordance with
prevailing standards.
(6) “Conserve” means to preserve, or cause to be preserved, a work of fine art by
retarding or preventing deterioration or damage through appropriate treatment in
accordance with prevailing standards in order to maintain the structural integrity to the
fullest extent possible in an unchanging state.
(c) Mutilation, alteration or destruction of a work
(1) No person, except an artist who owns and possesses a work of fine art which the artist
has created, shall intentionally commit, or authorise the intentional commission of, any
physical defacement, mutilation, alteration or destruction of a work of fine art.
(2) In addition to the prohibitions contained in paragraph (1), no person who frames,
conserves, or restores a work of fine art shall commit, or authorise the commission of, any
physical defacement, mutilation, alteration, or destruction of a work of fine art by any act
constituting gross negligence. For purposes of this section, the term “gross negligence”
shall mean the exercise of so slight a degree of care as to justify the belief that there was an
indifference to the particular work of fine art.
(d) Authorship
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The artist shall retain at all times the right to claim authorship, or, for just and valid
reason, to disclaim authorship of his or her work of fine art.
(e) Remedies
To effectuate the rights created by this section, the artist may commence an action to
recover or obtain any of the following:
(1) Injunctive relief.
(2) Actual damages.
(3) Punitive damages. In the event that punitive damages are awarded, the court shall,
in its discretion, select an organization or organizations engaged in charitable or
educational activities involving the fine arts in California to receive such damages.
(4) Reasonable attorneys' and expert witness fees.
(5) Any other relief which the court deems proper.
(f) Determination of recognised quality
In determining whether a work of fine art is of recognized quality, the trier of fact shall
rely on the opinions of artists, art dealers, collectors of fine art, curators of art museums,
and other persons involved with the creation or marketing of fine art.
(g) Rights and duties
The rights and duties created under this section:
(1) Shall, with respect to the artist, or if any artist is deceased, his heir, legatee,
or personal representative, exist until the 50th anniversary of the death of such
artist.
(2) Shall exist in addition to any other rights and duties which may now or in
the future be applicable.
(3) Except as provided in paragraph (1) of subdivision (h), may not be waived
except by an instrument in writing expressly so providing which is signed by the
artist.
(h) Removal from building; waiver
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(1) If a work of fine art cannot be removed from a building without substantial
physical defacement, mutilation, alteration, or destruction of such work, the rights
and duties created under this section, unless expressly reserved by an instrument
in writing signed by the owner of such building and properly recorded, shall be
deemed waived. Such instrument, if properly recorded, shall be binding on
subsequent owners of such building.
(2) If the owner of a building wishes to remove a work of fine art which is a part
of such building but which can be removed from the building without substantial
harm to such fine art, the rights and duties created under this section shall apply
unless the owner has diligently attempted without success to notify the artist, or, if
the artist is deceased, his heir, legatee, or personal representative, in writing of his
intended action affecting the work of fine art, or unless he did provide notice and
that person failed within 90 days either to remove the work or to pay for its
removal. If such work is removed at the expense of the artist, his heir, legatee, or
personal representative, title to such fine art shall pass to that person.
(3) Nothing in this subdivision shall affect the rights of authorship created in
subdivision (d) of this section.
(i) Limitation of notices
No action may be maintained to enforce any liability under this section unless brought
within three years of the act complained of or one year after discovery of such act,
whichever is longer.
(j) Operative date
This section shall become operative on January 1, 1980, and shall apply to claims based on
proscribed acts occurring on or after that date to works of fine art whenever created.
(k) Severability
If any provision of this section or the application thereof to any person or circumstance is
held invalid for any reason, such invalidity shall not affect any other provisions or
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applications of this section which can be effected without the invalid provision or
application, and to this end the provisions of this section are severable.
This statute does not purport to protect all of the moral rights. Essentially, it is restricted
to providing protection for artworks against mutilation, alteration and destruction, and
conferring upon the artist the right to claim authorship. Both of these subjects are of
similar importance in Australia.
The legislators chose not to include a right of disclosure. In contrast, the Germans have
included the following clause:
“Article 12. The Right of Dissemination –
(1) The author shall have the right to determine whether and how his work is to be
disseminated.
(2)The right of publicly communicating the contents of his work or a description
thereof is reserved to the author, provided that neither the work nor its essence, nor
a description thereof has previously been publicly disseminated with his consent”:
Law of 9 September 1965: Contents of Copyright.
Another interesting feature of the Californian Act is that (with one exception) the rights
conferred are not waivable. This recognises the weak bargaining position of most artists
and prevents purchasers and commissioners from demanding waiver of these rights. This
does not mean that, in practice, the artist cannot waive them; it simply means that any
agreement to that effect, made between the parties, will not be enforceable. If the artist
chooses not to enforce the statutory rights, that is a private matter.
ARTISTS' AUTHORSHIP ACT 1983 (NEW YORK)
ARTICLE 14-A -- ARTISTS' AUTHORSHIP RIGHTS
Sec.14.51. Definitions.
14.53. Public display, publication and reproduction of works of fine art
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14.55. Artists' authorship rights.
14.57. imitations of applicability.
14.59. Relief.
14.51.Definitions
Whenever used in this article, except where the context clearly requires otherwise, the
terms listed below shall have the following meanings:
1. “Artist” means the creator of a work of fine art;
2. “Conservation” means acts taken to correct deterioration and alteration and acts taken
to prevent, stop, or retard deterioration;
3. “Person” means an individual, partnership, corporation, association or other group,
however organized;
4. “Reproduction” means a copy, in any medium, of a work of fine art, that is displayed or
published under circumstances that, reasonably construed, evinces an intent that it be
taken as a representation of a work of fine art as created by the artist;
5. “Work of fine art” means any original work of visual or graphic art of any medium
which includes, but is not limited to, the following: painting; drawing; print; photographic
print or sculpture of a limited edition of no more than three hundred copies; provided
however, that “work of fine art” shall not include sequential imagery such as that in
motion pictures.
Added L.1983, c. 994, 3.
14.53. Public display, publication and reproduction of works of fine art
Except as limited by section 14.57 of this article, no person other than the artist or a person
acting with the artist's consent shall knowingly display in a place accessible to the public
or publish a work of fine art of that artist or a reproduction thereof in an altered, defaced,
mutilated or modified form if the work is displayed, published or reproduced as being the
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work of the artist, or under circumstances under which it would reasonably be regarded
as being the work of the artist, and damage to the artist's reputation is reasonably likely to
result therefrom.
Added L.1983, c. 994, 3.
14.55. Artists' authorship rights
1. Except as limited by section 14.57 of this article, the artist shall retain at all times
the right to claim authorship, or, for just and valid reason, to disclaim authorship of his or
her work of fine art. The right to claim authorship shall include the right of the artist to
have his or her name appear on or in connection with the work of fine art as the artist. The
right to disclaim authorship shall include the right of the artist to prevent his or her name
from appearing on or in connection with the work of fine art as the artist. Just and valid
reason for disclaiming authorship shall include that the work of fine art has been altered,
defaced, mutilated or modified other than by the artist, without the artist's consent, and
damage to the artist's reputation is reasonably likely to result or has resulted therefrom.
2. The rights created by this section shall exist in addition to any other rights and
duties which may now or in the future be applicable.
Added L.1983, c. 994, 3.
14.57. Limitations of applicability
1. Alteration, defacement, mutilation or modification of a work of fine art resulting
from the passage of time or the inherent nature of the materials will not by itself create a
violation of section 14.53 of this article or a right to disclaim authorship under subdivision
one of section 14.55 of this article; provided such alteration, defacement, mutilation or
modification was not the result of gross negligence in maintaining or protecting the work
of fine art.
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2. In the case of a reproduction, a change that is an ordinary result of the medium of
reproduction does not by itself create a violation of section 14.53 of this article or a right to
disclaim authorship under subdivision one of section 14.55 of this article.
3. Conservation shall not constitute an alteration, defacement, mutilation or
modification within the meaning of this article, unless the conservation work can be
shown to be negligent.
4. This article shall not apply to work prepared under contract for advertising or
trade use unless the contract so provides.
5. The provisions of this article shall apply only to works of fine art knowingly
displayed in a place accessible to the public, published or reproduced in this state.
Added L.1983, c. 994, 3.
14.59. Relief
1. An artist aggrieved under section 14.53 or section 14.55 of this article shall have a
cause of action for legal and injunctive relief.
2. No action may be maintained to enforce any liability under this article unless
brought within three years of the act complained of or one year after the constructive
discovery of such act, whichever is longer.
Added L.1983, c. 994, 3.
2. The British Reforms
In late 1987 the British Government introduced an important Bill into the House of Lords.
At the time of writing it has not been passed into law but its passage is expected in 1988.
Unlike the Americans, the British have chosen not to introduce moral rights by enacting a
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separate statute but rather, will introduce it by an amendment to its present Copyright
Act.
The following summary of the moral rights aspects of the legislation is taken from an
article by Henry Lydiate, “Copyright and Moral Rights: New Legislation” [1988]
(December/January) Art Monthly (U.K.) 42. The extract is reproduced here with kind
permission.
“The essential features of the scheme (which also, incidentally, covers writers,
musicians and film makers) for visual artists, are these.
Protected works will include all visual artwork, and works of artistic craftsmanship
and of architecture, so long as such work is `original' i.e. original in expression (not
thought), manifesting the fruits of the author's own skill and labour -- not of some
earlier author; slavish copies are out, as are works which manifest substantial
features of another, however skilful their execution.
The creator of any such original work is given moral rights as author, whether or
not the work has been commissioned or executed whilst an employee, student or
apprentice. There are five rights:
Identification as author: this will give creators the right to be identified as author,
whenever the work is published commercially, exhibited in public, or included in a
TV programme or film. This new right will considerably strengthen artists'
bargaining power in initial contractual negotiations for commissions and terms of
employment. In addition, artists whose works are exhibited in public, especially
sculptors and artists/craftspeople whose works are permanently sited in or on
buildings and in spaces open to the public, will now be able to insist on their
identification as author.
No unjustified modification: creators will be given the right not to suffer unjustified
modification whenever the work is published commercially, exhibited in public, or
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included in a TV programme or film. Modification means any addition to, deletion
from, alteration to, or adaptation of, the artwork; such distortions will be
unjustified if they are unreasonable and prejudice the honour and reputation of the
author. This new right will enable artists to check distortions, before and after the
event, and whether or not they own copyright; only artist employees cannot
intervene if their boss has approved any modification. It even enables artists whose
works are exhibited in public, especially those sited in or on buildings, and in
public spaces, to insist that distortions (including the ravages of time and the
elements, as well as of vandalism) be checked and corrected. As has been outlined
many times in this column, there is a common myth amongst commercial
publishers, their reproduction technicians, and fine artists alike, that it is not an
infringement of copyright to take an artist's original image, modify it slightly, and
then reproduce it; this new moral right not to suffer unjustified modification will,
once and for all, kill that myth: such modifications will, under the new law, be a
moral right infringement and continue to be a copyright infringement.
No false attribution as original author: this is not a new right, it exists in law today,
and gives creators the right not to be named as authors of works they did not
create, whenever such works are shown to the public, through exhibition or
publication of copies including film and TV programmes.
No false attribution as author of altered work: this is also not a new right, it exists
in law today, and is the right of any artist whose work has been altered without
consent, to stop being named as author whenever anyone deals with such work or
copies of such work by way of trade.
No false attribution as author of a copy of work: again, this is not a new right, it
exists today and will continue to enable artists to prevent dealers falsely trading in
copies of their works purporting to have been authorised by them.
All five rights will last for the author's lifetime and for a period after death: the first
two, the right to be identified and not to suffer unjustified modification, will
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continue for 50 years beyond the author's death and will be capable of being
bequeathed in artists' wills. The last three, rights concerning false attributions, will
continue for 20 years beyond the author's death but will not be capable of being
bequeathed in an artist's will (which means that only the deceased artist's personal
representatives will be capable of taking action to enforce such rights).
Exceptionally, in the case of photographs, all five rights will only last for 50 years
from the making of the image.
Although the current draft Bill will enable artists to waive these new rights (a
provision currently the subject of great consternation and much lobbying of
Government on behalf of artists, before it becomes law), none of the moral rights
will be capable of being transferred or assigned by the artist to anyone else during
his/her lifetime. This latter facet of the new law will strengthen the real value of
this legislation to all artists in the U.K. When negotiating contracts or commissions,
exhibitions, employment and copyright permissions, authors will henceforth have
an absolute right to insist that the contractual terms and conditions properly
provide for their personal involvement in approving the quality, method and
manner of their work being seen by the public. It will be for the would-be
commissioner, exhibiting body, employer, or copyright licensee, to initiate
discussions about waiver and to offer incentives enough to the artist to agree to
waive any or all of their moral rights. Moreover, even if an artist's waiving of these
rights is successfully achieved -- at a price -- such waiver will equally be capable of
being revoked by the artist -- perhaps also for a price -- and, in any event, many of
the abuses which artists will be able to correct under the new law, are matters
which they will have had no opportunity of foreseeing or any right to negotiate at
any stage after their original work left their possession.”
F. PROTECTION OF MORAL RIGHTS BY CONTRACT
In the absence of legislation, the only means of protecting moral rights is by means of
contract. Again it must be observed that most artists are hardly in a position to bargain for
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such contentious things. However, for those fortunate or determined enough, the
following clauses may be included in the agreement of sale:
Alteration or Destruction. The purchaser agrees to not intentionally destroy modify or
alter the work.
Repairs. The purchaser agrees to maintain the work in good repair. It is further agreed
that if the work is altered damaged or in need of any restoration:
(i) the artist will be consulted before any restoration is commenced;
(ii) the artist will be given first opportunity to do the restoration; and
(iii) if the artist does the work he/she will receive reasonable payment.
A more difficult question is that posed by the need to obtain a loan of the work for the
purpose of exhibition. Many purchasers will not agree to such a “concession”. However, if
it is essential that this right be protected (e.g. if the artist is contemplating a
“retrospective”), the following type of clause could also be inserted in the purchase
agreement:
Loan for Exhibition. The purchaser agrees that the artist may borrow the work for the
purpose of exhibition for up to forty days every five years, on the following conditions:
(i) the artist must apply written notice of intent 90 days prior to the opening of
the exhibition;
(ii) the artist must insure the work for the reasonable market value of the work;
(iii) the artist must prepay the costs of transportation.
It must be noted that these clauses would only provide protection as against the initial
purchaser. If the work was later sold to another collector these terms would not be
implied into the second contract for sale and thus the artist could not enforce the terms
against subsequent purchasers. The only way of protecting oneself against this is to adopt
the clumsy “Transfer and Ratification Agreement” mechanism proposed in the “Projansky
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contract” . However this is very cumbersome and has met with enormous buyer
resistance in the United States.