Moral Rights and why you can’t simply paint a sculpture a different colour

This article popped up in January in the Irish Examiner and I thought it brought up some interesting points about moral rights. A sculpture by the late artist John Burke, which had been commissioned in 2005 and has stood on the grounds of Cork University Hospital in its original hues of yellow ever since, was unceremoniously and without notice, painted red and white. Frances Lynch, who commissioned the sculpture for €30,000 in the first place, said she has been unable to find out who repainted it. She also points out that the new colour scheme just so happens to match the county colours of Cork.

Edel Ní Nualláin, programme manager of arts in healthcare at CUH is quoted as saying:

“The maintenance department used their own discretion as to the requirements and added it to the hospital painting schedule and that would include the colour of the paint. It can happen that artworks are painted different colours over time, if a particular colour is not specified. Now that we have become aware of the particular colour of the artwork, we can revert to the original colour to be painted.” 

It may be the case that ‘it can happen that artworks are painted different colours over time’ but it shouldn’t be. What of the moral rights of the artist? Can owners of artworks simply paint them different colours?

Moral Rights

Moral rights form part of an artist’s intellectual property, and like copyright, they subsist automatically upon creation of a work of art. They have the same duration as copyright but unlike copyright, they cannot be assigned, only waived. In Ireland under the Copyright and Related Rights Act 2000, we have a relatively weak form of moral rights, at least as compared to some other European countries. Moral rights stem from the civil law tradition and were not in Irish law before the 2000 Act. The act protects the following rights:

1. Paternity Right – The right to be identified as the author of a work.
2. Integrity Right – The right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would prejudice his or her reputation.
3. False Attribution – The right not to have a work falsely attributed to him or her as author.

We are here looking at the integrity right. Can we say that the painting of John Burke’s sculpture in completely different colours prejudice’s his reputation? Well, it could certainly be argued that way. I am sure John Burke would say so. These aren’t the colours he chose, and if there is a suggestion that they are Cork colours, his reputation as an artist could be damaged. But by simply making the artwork worse, there would be enough to prejudice an artist’s reputation.

I think it is fair to say that moral rights are not as much discussed, or even known about, as copyright. The article linked at the beginning of this post does not mention them for instance. They are important, however. Artists have to have a right to protect the integrity of their work. The associated rights of being identified as the author and right not to be falsely called an author of a work seem obvious.

Other interesting moral rights issues from other jurisdictions include Peter Doig’s court battle where he had to fight for his right not to have a painting falsely attributed to him.

Daniel Buren’s fight with the French government over the slow decay of his public sculpture.

And Whistler’s court case over a commission where one relief sought against him was the completion and delivery of the painting he had agreed to paint. It brought up slightly nebulous issues around an artist’s moral right of disclosure (which exists in France). Whistler wrote a book about his legal experience called ‘Eden versus Whistler. The Baronet & the Butterfly. A Valentine with a Verdict’. Quite a dramatic title. I bought a first edition on eBay for £20 actually.

So not only does John Burke’s sculpture, which was described after being painted red and white as ‘appalling and disrespectful’ by Frances Lynch, look noticeably worse, it also breached the artist’s moral rights. It’s interesting the use of the word ‘disrespectful’ by Ms. Lynch as that is the issue that the law seeks to protect. Not an economic right like copyright, but a moral one to do with respect and integrity. Moral rights could do with more strength and publicity in Ireland.