1709 Blog: for all the copyright community

Wednesday, 24 July 2013

Crime Without a Remedy: The Destruction of Artworks

Is it possible to die twice? When a painter dies, his body dies; but a part of the artist lives on in his paintings. That is one of the seductions of art, the possible boon of immortality – or at least, the illusion of immortality.

But what happens when an artwork is destroyed? In a sense, a piece of the artist dies again. The occurrence is a disturbing one, because, somewhat analogous to a human death, it signifies the destruction of something that will never come again. This holds true whether we are speaking of ancient artworks like the Buddhas of Bamiyan, destroyed by the Taliban in Afghanistan, or the paintings of Picasso or Monet.

It's not just pictures that burn. This one, c.1670, depicts
the damage wreaked by the Great Fire of London
In a stunning recent case involving the destruction of artworks, a Romanian woman claimed to have disposed of seven paintings stolen from the Kunsthal Museum in Rotterdam by incinerating them in her oven. In a bizarre demonstration of maternal affection, she claimed to have destroyed the paintings to remove evidence linking her son to the theft (Liz Alderman, “Romanian’s Tale Has Art World Fearing the Worst” 18 July 2013, here). She now asserts that her story was not true, possibly because the “crime of ‘destruction with very serious consequences’” is the most serious of the offenses with which she has been charged in Romania (Andrew Higgins, “Romanian Denies Burning Stolen Art,” 22 July 2013, here). But investigators were crestfallen to discover paint, and other debris that would have been difficult to fabricate, in the oven.

Can the law do anything to address acts such as these? Ideally, it should accomplish two purposes: providing some kind of deterrent to the destruction of artworks, and offering a legal basis for prosecuting those involved in the destruction. While recognizing the value of both goals, their fundamental futility must also be acknowledged: action can only be pursued after the work has been destroyed. It is too late to find a true remedy for the crime.

The question of liability for the destruction of an artwork is a thorny legal issue. In many jurisdictions, copyright law includes the moral right of an artist to protect the “integrity” of his or her work. The international model for this right can be found in the Berne Convention for the Protection of Literary and Artistic Works. Article 6bis of Berne specifically emphasizes the artist’s right to act when the mistreatment of the work may damage his or her “honor or reputation”.

Curiously, this very provision has limited the applicability of the integrity right to the destruction of artworks. When a work of art is destroyed, so the argument goes, the key question of how the mistreatment of the work might affect the artist’s reputation becomes irrelevant. The work no longer exists. How can there be any question of damage to artistic reputation?

For many art-lovers, this result will leave a bitter taste on the lips. But this knife-edge approach to the integrity right is far from arbitrary: it probably reflects confusion at the heart of the Berne Convention, itself.

In fact, breaking down Article 6bis of Berne is a helpful exercise. The provision ostensibly protects the “integrity” right. But, in reality, it recognizes two related, yet distinct, interests: the preservation of the integrity of the work, and the reputation of the artist.

The language of Berne creates a sort of interpretive bridge between the two interests. It links the protection of reputation with the integrity of the work by asking the artist to prove damage to his or her reputation as a pre-requisite to the integrity claim. In other words, the Berne framework can be seen as setting a threshold for the level, and type, of damage to a work that will trigger the moral rights protections in Article 6bis. If the damage to the work is egregious enough, and of such a kind that it will harm the artist’s reputation, then a cause of action can be established.

The link between integrity and reputation is a construction of Berne: there is no obvious legal or conceptual reason why the two interests must be linked in this way. In fact, if our true goal is to protect the integrity of an artwork, it may not matter whether, or how, the handling of the work affects the artist’s reputation. And, indeed, a number of countries, including France and, at one time, India, have had open-ended integrity rights in their copyright laws that did not impose a burden of proof on the artist to show damage to his or her reputation.

What was the rationale behind these laws? In France, commentators usually talk about an author-centric approach, which means that the author’s opinion regarding mistreatment of the work is sufficient proof of mistreatment for the court. No argument can be made that the mistreatment “improves” the work (its marketability, for example), or that the impact of the mistreatment is negligible, and therefore, not worth the fight. In India, the approach was slightly different: the tacit goal of the old moral rights provisions was to give recognition, not only to artists, but also, to artworks themselves. The aim was to protect cultural heritage, and this goal, implicit in the Indian legislation, was ultimately articulated by the Delhi High Court in the seminal case of Amar Nath Sehgal v. Union of India.

The Sehgal case involved the destruction of a famous sculpture. In its decision, the court outlined two reasons why, in its opinion, protection of the integrity right should protect this artwork from outright destruction. The first of these, in French style, is an artist-focused point. The court argued that destruction of a single work reduces the overall “creative corpus” of an artist, leading to a decline in quantity and, possibly, quality – and, therefore, to possible damage to the artist’s reputation (Sehgal, paras 31 & 56). But the court’s second line of reasoning raised an issue of much broader scope: the purpose of moral rights, said the court, is to protect the integrity of cultural heritage. In the case of Amar Nath Sehgal’s sculpture, the work in question was considered to be a national treasure of India. It clearly merited protection as an important part of Indian cultural heritage. The sculpture would therefore be protected from destruction by the moral right of integrity under Indian copyright law.

This conclusion was all the more remarkable because, while the Sehgal litigation was ongoing – 1979-2005 – the government had amended the moral rights provisions in section 57 of the Indian Copyright Act. The goal of the 1994 amendment? To redraft the integrity right to match the Berne provision – making it depend on the artist’s ability to prove damage to his or her “honor or reputation” (Sehgal, paras. 34-35). But, said the court, regardless of these changes, the protection of cultural heritage had to take precedence. In its determination, the court relied on India’s membership in international conventions on cultural property.

In paragraph 56 of the judgement, the court stated:
“There would therefore be [an] urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the author’s creative corpus it affects his reputation prejudicially as being actionable under said section. Further, in relation to the work of an author, subject to the work attaining the status of a modern national treasure, the right would include an action to protect the integrity of the work in relation to the cultural heritage of the nation.” (author’s italics)
The Sehgal case sets a strong international precedent for arguing that the destruction of artworks should be prevented as one of the protections available under the rubric of the moral right of integrity. Another approach to the same problem may be seen in Russian law, which provides for the “indefinite” protection of the integrity right, allowing it to be asserted by the artist’s “heirs, successors or other persons concerned”. This type of provision could be seen as a way of empowering the public to act on behalf of artworks that have become part of the nation’s cultural heritage. The integrity right, which starts out as a personal right of the artist, ultimately becomes, like the work itself, a part of the public domain.

In the case of the paintings stolen from Rotterdam, this approach to the integrity right would allow both the art thieves and the woman who destroyed the paintings to face prosecution, not only for the theft, but also, for the irredeemable act of destruction itself.

This article, composed by Mira T. Sundara Rajan, was posted on her behalf by Jeremy

1 comment:

Andy J said...

The problem with moral rights is that they are relatively weak, civil matters which are not widely understood within the the general population. They also rely upon the artist or their heirs to enforce them. This means that their deterrent value is also weak. To take the case of the Romanian mother, would she have been aware of the moral right of integrity and would this knowledge have overridden her desire to protect her son, assuming that she did in fact destroy the paintings?
In most cases where artworks are destroyed or defaced as a form of public protest (at least in the UK) the legal remedy lies in criminal damage. Surely this remains a stronger deterrent because the sentences are greater (compared to civil damages for instance) and the offence is more widely understood.
I think the Indian court was right to de-couple the artist's reputation from the issue of the loss to public culture. If the integrity of the work and the artist's reputation are too closely bound together, then where does that leave important works by anonymous artists?
The artificial legal construct of copyright as a monopoly (and to a lesser extent, the legal acknowledgement of moral rights) is justified by the fact that the work will ultimately enrich society as a whole (the public good). When the work is destroyed, this bargain is broken and the public are cheated. Similar thinking lies behind UNESCO's World Heritage programme amongst other things, and is in no way tied to any author or artist for its moral justification.