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Studies . Moral rights - Artist’s integrity right backed by Indian court
26-09-2007
Moral rights claims rarely come before the courts in New Zealand. However, the moral rights of an artist were under the spotlight in a landmark Indian case Amar Nath Sehgal v Union of India. Back in 1969, the Indian government commissioned sculptor Amar Nath Sehgal, to design a mural for a building in Delhi. The completed 12 x 40 metre bronze mural attracted wide acclaim and became a cultural landmark. In 1979 the building was renovated, the mural dismantled and the remnants put into storage.
The artist did not own copyright in the work − it had been assigned to the Indian government. Distressed by the mural’s treatment and after unsuccessfully petitioning authorities for many years, the artist brought legal action against the government for breaching his moral rights. In the ensuing 13-year legal wrangle, the artist claimed that the government’s action infringed his right of integrity in his work, in particular, that:
• The dismemberment of the homogenous blend of the pieces of each tile in the mosaic constituted an act of mutilation; and
• The government’s action in reducing the mural to junk was prejudicial to the artist’s honour and reputation, because it dealt a blow to the self esteem and celebrity bestowed on the work.
The New Delhi High Court ruled in the artist’s favour and ordered that all rights in the mural vest with the artist. It ordered the return of the mural remains to the artist and ordered the government to pay the artist Rs.500,000 in damages (approximately NZ$16,000).
As former colonies of Great Britain, New Zealand shares similar legal traditions with India and like most jurisdictions with obligations under the Berne Convention, both countries have adopted laws recognising the moral rights of creators. Although the scope of the rights varies from country to country, moral rights generally give creators the right to object to derogatory treatment of the work and the right to be identified as the author (creator) of the work. The rights exist independently of copyright − and regardless of whether the artist retains copyright or transfers it to another person.
“Derogatory treatment” refers to a distortion or mutilation of a work, or a treatment that prejudices the creator’s honour or reputation. New Zealand artists have the right to object where, for example, a person publicly exhibits a derogatory treatment of the work. The derogatory treatment must be an addition to, deletion from, or alteration to a work. The right does not cover situations where, for example, an artwork has been allowed to deteriorate or is deliberately destroyed. The Indian artist would probably have failed in court if the mural had been completely destroyed, as would a NZ artist in the same predicament.
It is important to note that moral rights in New Zealand apply in specific situations and there are many exemptions and qualifications, including where works are subject to Crown copyright. The ability of New Zealand artists to waive moral rights (for example, by agreeing to a waiver of their rights in a commissioning agreement) arguably undermines the status of moral rights in this country because creators may be asked or be expected to waive these rights.
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