Artist Claims National Portrait Gallery Exhibition Violates His Moral Rights
The artist, AA Bronson, asked the National Portrait Gallery last week that it remove his photograph, Felix, June 5, 1994, which shows the corpse of Mr. Bronson’s partner shortly after he died of AIDS, from the NPG show, Hide/Seek, to protest the removal of David Wojnarowicz’s video.
To this day the National Portrait Gallery has not complied. According to Tyler Green of Modern Art Notes, Bronson sent the NPG a brief but to-the-point e-mail insisting that if his art work was not withdrawn as he requested, the NPG would be in jeopardy of violating Bronson’s moral rights,
My lawyer suggests that, according to my moral rights under copyright law in both Canada and the USA, I have the right to withdraw my work from Hide/Seek. Please remove my work from the exhibition immediately.
We’re not sure about the Canadian moral rights law, but it does not seem to us that under the 1990 Visual Artists Rights Act the NPG would be violating Bronson’s moral rights simply by exhibiting the work within a context and/or exhibition that Bronson did not like or approve of. If this were the case, artists could dictate and–ironically–censor the speech of individuals whom they did not identify with ideologically. Interesting move though.
UPDATE: Donn agrees!
Tags: artist protest, censorship, Free Speech, law, photography
An interesting situation. Canadian “moral rights” stem from a case where a public sculptural-photo work by Michael Snow – a flock of geese, where the surface of each goose was covered with photos of the goose’s surface, giving a highly realistic impression – was hanging in a local shopping mall, a commissioned piece I believe. The mall, in it’s infinite wisdom, at Christmas time decided to put red ribbons around the geese’s necks. Snow protested they were trivializing his work and the rest is history as they say. Sometime later, the artist’s “moral right” was formally added to our Copyright Act.
Another interesting, more recent Canadian case involved music, where a song called Rise Up by the Canadian group Parachute Club, was used in an advertisement for a bread company. Rise Up is a protest song, a song about political solidarity. Parachute Club protested that the meaning of the song was being perverted, claimed their moral right and succeeded.
Moral right is the right of the artist to prevent the value or meaning of their work from being impugned by virtue of the context it’s put into. Mr. Bronson definitely has an argument that the National Portrait Gallery situation is now tainting his work, but unlike Snow or Parachute Club, it’s not because of something “physical,” like festive ribbons or association with an inappropriate commercial product; in fact it’s a bit challenging to describe exactly how the meaning of his work is being jeopardized or compromised by it’s inclusion in the show.The public knows the difference between the innocent bystander artist who however regrettably ended up in a show that went off the rails and one who is complicit in censorship. Or does it?
Moral Rights in Canada are found in Section 14 of the CR Act and in Section 28 with respect to infringement. Moral Rights in the abstract have been a part of Canadian law since Canada legislated Article 6bis of the Berne Convention into its Copyright Act in 1931. Section 14 rights codify integrity and attribution rights. For now the Act only talks about author’s rights but Bill C 32 if enacted would add explicit reference to performers rights.
Section 28.1 indicates that “Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights.
R.S., 1985, c. 10 (4th Supp.), s. 6.”
Section 28.2 goes on to say “The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author”.
In the case of a painting, prejudice is deemed to have occurred when “distortion, mutilation or other modification” of the work has taken place.
Given that Bronson presumably gave his consent to place the work in the exhibition, I would think that absent any proof the work has been subsequently displayed in a manner rising to the level of ‘modification’, and assuming the National Portrait Gallery doesn’t distort or mutilate works, I have a hard time seeing how this could be construed as a moral rights claim under Canadian law. Bronson would not only have to prove mutilation/distortion/modification, but also that his honour or reputation were harmed as a result. (I’m just assuming the original consent thing – no idea what the norms of exhibitions or artist/gallery agreements are!)
If it is the norm for an artists to sign a formal agreement with a gallery in situations like this, would the artist’s actions not be more accurately described as falling under the rubric of contract? He is retracting his consent for a legitimately exhibited work, not asserting he never gave consent for the work to be exhibited by the National Portrait Gallery, in the exhibition in question…or perhaps that is not the case at all.
Canadian cases have tended to be decided rather conservatively in Canada with respect to moral rights. There is extreme hesitation to acknowledge artist’s rights at the expense of user’s rights or copyright owner’s economic rights. Theberge v. Galerie d’Art du Petit Champlain Inc. [2002] 2 S.C.R. 336 is the best example of this kind of reasoning in Canadian CR law.
Moral rights have also not been extensively litigated in Canada. Snow vs. The Eaton Centre is one of the few Canadian cases that have been decided solely on the basis of moral rights, and very few cases ever reach the Supreme Court.
As with most statute based law in Canada, the jurisprudence reveals the added complication of the Act existing in both English and French. Determining the meaning of provisions, or the intentions of parliament often involves comparing the french and english wording and the divergent subtleties of meaning contained in both.
In the Theberge, case the Quebec Civil Code interpreted moral rights more generously in favour of the artist, but continentalist sensibilities and personality theory gave way to utilitarian considerations when the case left the province of Quebec and reached the Supreme Court.
With respect to 28.2 (1) & (2) of the Canadian CR Act, there is no explicit public display exception, but there is this more general exception that follows the description of what constitutes ‘distortion, mutilation, modification’…
(3) For the purposes of this section,
(a) a change in the location of a work, the physical means by which a work is exposed or the physical structure containing a work, or
(b) steps taken in good faith to restore or preserve the work
shall not, by that act alone, constitute a distortion, mutilation or other modification of the work.
R.S., 1985, c. 10 (4th Supp.), s. 6.
Sorry for the multiple posts – feel free to amalgamate/edit/delete these!
Here is the Canadian connection:
(3rd para from bottom – work by Canadian artist, on loan from a Canadian gallery)
http://www.post-gazette.com/pg/10356/1112440-437.stm
Upon reflection… what if, for the sake of protest, the artists comprising the exhibition agreed to joint authorship of the entire exhibit? Could they argue a moral rights claim under VARA if the work was conceptualized as an indivisible whole? Or would they have needed to agree the work was collective prior to the exhibition opening for this gambit to work, (assuming there is a scenario where it could).