Wednesday 19 February 2014

Non-copying alterations under UK law: a paradoxical result?

"Assuming that the Mona Lisa painting was still protected by copyright and was so under UK law, would it be an infringement for me to draw a moustache on it (that is, on the original - so that the issue of me making a copy doesn't arise)?"

This is the question that a 1709 Blog friend writing under the nom de plume of Leonardo [of course: what else?] wishes to pose to this Blog's readers.

"I can see" - continues Leonardo - "that under say: US copyright law, one might argue that the altered painting was a derivative work, hence the drawing of the moustache would be arguably an infringing preparation of a derivative work. But the adaptation right under the Copyright Designs Patents Act 1988 (CDPA) does not extend to artistic works. So, it might be vandalism, it might be an infringement of the artist's moral rights, but I can't see how it would be an infringement of copyright per se. Is there something I'm missing?"

Among other things, Section 21(1) CDPA provides that "The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work", thus seemingly excluding artistic works from its scope.

As such, this blogger reckons that Leonardo may be indeed right. If anything copyright-related, could this be just a case of moral rights (notably: right of integrity) infringement? 

Another question that comes to mind may be: Is the author of the mustache entitled to copyright protection over the resulting work? The addition could be deemed sufficiently original (surely, it is adding a 'personal touch') for the sake of copyright protection. Might this mean that Leonardo da Vinci would have to obtain the permission of the mustache-adder should he wish to sell the work?

That would be rather a paradoxical result, but what do readers think? Can anyone help Leonardo?


Peter Lawton said...

A transformative work surely?

Robin Fry said...

Of course, there first needs to be a restricted act for the issue of copyright infringement first to occur.

But we do expect, in April, the issue of a new statutory instrument introducing a parody exception. The wording previously put out for consultation by the Intellectual Property Office here proposed a permitted act of:
'Copyright in a copyright work is not infringed by any fair dealing with the work for the purposes of caricature, parody or pastiche'

Even if finally issued in a different form, such use by Leonardo may well fall squarely into this new permitted act.

Eleonora Rosati said...

Thanks so much for your comment Robin. I find Leonardo's question very interesting. Certainly, the introduction of this new exception may facilitate things, although I personally expect that what amounts to parody, caricature and pastiche will raise controversy ...

Robin Fry said...

One unanswered question is the conflict between the moral rights provisions in Chapter IV Copyright, Designs and Patents Act 1988 which, inter alia, give the author the right to object to derogatory treatment of a work - which can include an 'addition' to the work - and the new permitted act, intended by parliament specifically to facilitate parody and pastiche.

Surely what is needed is an explicit statement either within Section 81 (the exceptions to the moral rights provisions) or within the wording for the new permitted act as to which takes precedence?

Eleonora Rosati said...

Yes, I guess a clarification as to the relationship between moral rights (notably integrity) and parody is much needed, unless they think that a parody, caricature or pastiche never involves a "treatment" of a work (in this case, no question of infringement of the right of integrity would arise)

john r walker said...

Minor point , the Mona Lisa is not a reproduction and is not in itself covered by copyright. ( And if you were to try and deface the picture hanging in the Louvre, you would be quickly bundled off to the Bastille, for life).
Do moral rights extend to the protection of 'reproductions' ?