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

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Photo by Martin Dee;
smile by Mira

The 1709 Blog is delighted to bring readers the first in a series of guest blog posts by Mira T. Sundara Rajan on moral rights. Mira should require little introduction to anyone who is concerned with this important subject, since this blog reviewed her book, Moral Rights, last year (here). Mira's next book, Moral Rights: A Guide to Global Practice, is in the pipeline. The subject of her first guest post is ...

Homage or Humiliation? Moral Rights, Vertigo, and The Artist

Michel Hazanavicius’ film, “The Artist,” was a sensational 2011 tribute to silent movies - and also, as the director has since argued, to Hitchcock’s classic 1958 film, “Vertigo” (see BBC News, 10 Jan. 2012). The climactic scene of The Artist plays out to the accompaniment of the haunting score from Vertigo, composed by brilliant film composer and long-time Hitchcock collaborator, Bernard Hermann. In a silent film with no accompanying dialogue or environmental sounds to distract, the juxtaposition of new visuals and old music could not be more stark. For those familiar with Hitchock’s original -- called, by some critics, the greatest film of all time (while Hermann’s film score has been called “the greatest score ever written for Hollywood”: see Alex Ross, The New Yorker, Feb. 24, 2012) -- the feeling of déjà vu is intense. Actress Kim Novak, who played dual roles as Hitchcock’s mysterious heroine in Vertigo, called it a “rape”: “I feel as if my body - or at least my body of work - has been violated by the movie” (BBC News, 10 Jan. 2012).

As a lawyer interested in the moral rights of authors and artists, I couldn’t agree more. The situation surrounding the music for The Artist is a perfect, practical illustration of just how a moral rights violation can occur. Moral rights are based on the twin principles of attribution, which means adequate acknowledgement of the authorship of a work, and integrity, the notion of maintaining the quality of a work intact. The moral right of integrity is particularly relevant where the treatment of the work might cause damage to the author’s reputation.

In the case of Vertigo and The Artist, a highly original work was removed from its creative context and placed into an entirely new one. The use of the original music raises questions of both attribution and integrity. In the film titles, The Artist make no mention of Hermann at all, but only credits Ludovic Bource as the author of the film’s original score -- Hermann’s name appears deep within the end credits (see Alex Ross, above). While the scene is playing, there is no indication that the film has moved from original music to the Vertigo score. The music that is played is taken from Vertigo with no alterations. It is the music from Vertigo’s crucial love scene, in which the doomed heroine re-appears as if resurrected from the dead. And, although the images from Vertigo are not featured, anyone who is familiar with the original film will be reminded of them. Can moral rights in a film be infringed by an evocative allusion through the use of its music, even though the images per se have not been “copied”?

The integrity question, of course, is still broader. Does the removal of film music from its original context amount to a violation of integrity? Is the fact that the music was played without any alteration support the argument that its integrity was maintained by the makers of The Artist, or does it, in fact, violate integrity to replicate exactly the same music in a new context -- akin to copyright infringement in the usual sense? And what about the integrity of the musical score in the new film? Could Ludovic Bource have sued the film’s director for overriding his choices, and substituting the segment from Vertigo for Bource’s own, original composition?

The nature of film-making brings an added level of complexity to these questions. Film is a composite work based on the contributions of many individuals -- producer, director, author of the screenplay, author of the original musical score -- and, of course, the actors who deliver original performances. Worldwide, there is little agreement on who should be considered the “author” of a film. Many jurisdictions, including France, recognize co-authorship, with both director and author of the musical score acknowledged as joint authors of the film. In the case of the film composer, he or she may be simultaneously entitled to two authorial copyrights -- one for the original score, and one in the film as a whole. At WIPO, a new treaty on copyright in “audiovisual performances” is currently pending; if this is adopted, it appears very likely that the moral rights of actors to the attribution and integrity of their performances in films will be explicitly entitled to protection, as authors’ moral rights are now protected under the Berne Convention.

In the case of Vertigo, whose moral rights have been violated? Bernard Hermann’s, as the composer of the musical score? Alfred Hitchock’s, as the director who was responsible for the combined effect of music plus images, and gave the music its narrative significance? The actors -- Kim Novak and Jimmy Stewart -- who played their parts against the background of the music, and infused it with emotional intensity and poignancy?

Finally, the central role played by technology in this dilemma can hardly be overstated. Who says that moral rights have lost their relevance in a technological age? On the contrary, we live in the age of sampling, re-using, and remixing. The juxtaposition of Vertigo and The Artist is only made possible by the technology that remasters and integrates the original musical score into the new production. Moral rights are not only relevant to technology; they represent some of the key cultural issues of our time.

Those familiar with economic copyright might instinctively feel that what happened in The Artist is a form of free-riding on the labours of another. From a moral rights perspective, it amounts to emotional blackmail. As Kim Novak points out, the makers of The Artist are "using [the] emotions [that Vertigo] ... engenders as if it [they] were their own." Ironically, “The Artist” hails from France -- a country that arguably has the longest-standing and most powerful tradition of protection for moral rights in the world. In view of this cultural and legal tradition, the directorial choices in “The Artist” are even more difficult to understand.