The Charging Bull Case: Issue of Moral Rights

Introduction

“An Artist’s rights over its creation is not merely an economic consideration, but also an extension to object the modification of that work to the extent which is detrimental to the reputation and dignity of that artist………..”

Copyright is the exclusive rights granted to the creator of artistic work. The purpose behind the protection is to give recognition to the artistic work as well to give protection thereof to such work from being copied. The copyright holder enjoys legal protection under copyright law. These rights include an economic right which entitles the artist to transfer his work to others in return of economic consideration. The Artist creates a work with his intellect, which entitles him to ensure autonomy as to its expression. Art is an expression of an idea, so when a person creatively expresses his idea, it is important to give recognition to his work by its name so that artist can be connected with his work.

Further, legal entitlement is granted to an artist for creativity, but there is a need for moral rights as well. Moral rights are those entitlements which permit the copyright holder to express his work in the manner he wishes. The moral right encompasses the right to the integrity of the work, it means that the artist has the right to oppose the objectionable modification of that work which is injurious to the reputation of Artist. The moral rights are also important to protect the creativity of Artist because it ensures the autonomy of expression originated by the artist only. The protection of moral rights have been claimed in the recent charging bull and fearless girl issue wherein the sculpture charging bull was displayed in the city of New York and subsequently, in light of women’s day, a sculpture of fearless girl was placed directly in front of the charging bull, the artist of charging bull claimed that his moral rights have been infringed on the ground that the sculpture of fearless girl is detrimental to his reputation and modified the message given by the sculpture of a charging bull from optimistic to pessimistic. Therefore, the artist of the charging bull demanded to remove the sculpture of a fearless girl. This issue makes it important to understand the concept of moral rights under copyright law as well as its protection under the law.

Moral Rights under Copyright Law

The ambit copyright is too wide to provide legal as well as moral protection to the copyright holder. As the copyright is granted for various kind of artistic work, music, Literary work, cinematographic and sound recordings. The creator of work enjoys exclusive rights to protect his work. Copyright covers economic rights and moral rights. Artists may transfer their work in pursuant of economic interest. There are artists who enjoy moral rights also as they do not want economic interest merely, they want the integrity of their work to be protected. Moral rights under the copyright law are different from other exclusive rights in various aspects such as Moral rights are more as personal natural of author, Moral rights are intrinsic to author himself and do not subject to transfer and moral rights cannot be waived. Moral rights under copyright law apply to literary works including computer programs, Artistic works, Musical works, Dramatic works and Cinematograph films. It means the moral rights are applicable to sound recordings.

The moral rights are available to copyright holder in the various forms such as-

  • Right of attribution –Acknowledge the work of the artist and to recognize the artist by his work. It is one of the moral rights of creator to be attributed as an author of the work. Though, economic rights have been transferred by the author, yet the authorization remains with the author.
  • Right to object to false attribution – It is the moral right to acknowledged as the author and to object the others from getting false attribution of that work.
  • Right to Integrity of the work- The right to oppose the any modification or alteration of the work which is detrimental to the honor of author. Some countries authorize the authors to object such derogatory treatment of a work. The scope of this right is different in different countries. Such as Canadian law requires the author to prove that the injury has been caused to the reputation of the author to claim the infringement of copyright.

Right of Association- The right to prohibit the association of artistic work with services, product or Institution. This right is granted under Canadian law.

Right of Disclosure– This right authorizes the author to decide that his work should be published or not. If he decides to get it published, then he has freedom to choose the mode also. This right ensures the liberty of Author as to the disclosure of his work. French copyright law gives complete liberty to the author as to publication.

Origin and Historical Development of Moral Rights

The term “Moral Rights” has been derived from the French expression “Droit moral. It can be defined as those rights which are opposite of economic rights. Therefore, the origin of moral rights can be traced back to French Law.  The moral rights were first recognised internationally through the Berne Convention for the Protection of Literary and Artistic Works, 1886 (Berne Convention).

Further, in the year 1928, the revision conference of Berne convention was held in Rome wherein Article 6b is which deals with Moral Rights was added to the Berne Convention. Article 6b is of the Berne convention recognises the right of attribution and right of Integrity. Further, it declares moral rights as those rights which shall be maintained even after the death of the author. The redress mechanism shall be so governed by the law of member countries by itself as established by the Berne Convention. Countries were reluctant to incorporate the provisions regarding moral rights into their domestic laws. But, the steps were taken by countries to protect the moral rights recognising the importance of moral rights as inalienable. In 1990, the U.S. finally enacted the Visual Artists Rights Act of 1990 (VARA). This legislation recognised moral rights under American copyright law, though in a limited extent because it covers only physical works include paintings, sculptures, drawings, etc. This Act seeks to protect the honour and reputation of the artist. Subsequently, In 2000 Australia enacted the Copyright Amendment (Moral Rights) Act 2000 to amend its copyright law to enshrine moral rights. Australia law recognises Right of attribution, right of Integrity and right not to be falsely attributed. Therefore, countries such as France, Germany, and Italy provides for the protection of moral rights include the right of disclosure, attribution, integrity, and withdrawal.

Scope of Moral Rights under Indian Copyright Law

In India, the copyright Act, 1957 is an umbrella legislation dealing with the protection of copyrights of author. The Act guarantees both economic as well as moral rights. Economic rights are those rights which entitle the author of the work to raise economic benefits from his work and these rights are transferable.  This Act provides for a set of exclusive rights to protect the copyright of author under section 14 of the Act which recognizes economic rights also. On the other hand, moral rights are also enshrined under the copyright Act, 1957 which is in consonance with the Berne convention.

Section 57 of The copyright Act, 1957 deals with the author’s special rights which are commonly known as Moral rights”.These moral rights are independent of the economic rights and such rights remain with the Author of the work even after the transfer and assignment of economic rights. Section 57 recognizes following moral rights-

  • Right of paternity – It means that the author can claim the authorship of the work even after the assignment of economic rights.

Right of Integrity – The author has right to restrain the infringement of work or claim the damages with respect to any modification, mutilation, distortion or other such acts which is detrimental to the honour or reputation of the author of the work. However, the author has no right to restrain or claim damages in respect of adaptation of computer program.

Above two moral rights have been guaranteed by Indian Copyright law to author. It is clearly stated therein that if the author requires to display the work or to display the work to the satisfaction of author and the failure to do the same would not be deemed as infringement of copyright. It simply means that Indian law does not authorize the author to decide the disclosure of his work. Further, the moral rights in India can be exercised by legal representative of author. The issue raised before the Indian court about the contract of assignment that whether contract of assignment overrides the section 57. In Mannu Bhandari v. Kala Vikas Pictures Ltd,

the author of work has assigned some of the rights of work to other. Later on, the author has observed that her work has been modified to an extent which is injurious to her reputation, so she claims the infringement of moral Rights. The court observed that section 57 clearly stipulates that the moral rights remain with the moral even after the partial or whole assignment of copyrights of work to other. Therefore, contract of assignment must be in consonance with section 57 of The copyright Act, 1957. One of the landmark judgments in India with respect to moral rights is Amar Nath Sehgal v. Union of India, wherein the court upheld the moral rights of the author. In this case, Artist Amar nath sehgal created bronze mural for the International Convention Hall in Delhi as approached government of India in 1959. After the completion, the sculpture was placed on a wall in the vigyan bhawan. However, the said sculpture was removed in 1979 by the government and placed it in store room. Therefore, Amar nath sehgal claimed the violation of his moral right by the government. The Delhi High court explained in depth the protection of moral rights under section 57 of The copyright Act, 1957. By applying section 57 to the present context, the court affirmed the violation of moral rights of Author on the ground that the author has right to restrain the modification, distortion of work which is detrimental to the reputation of author. Though the government was owner of the mural so placed in the Vigyan bhawan, yet the artist has right to integrity of his work and if any such act is dome which harms the integrity of his work, then the artist can claim moral rights. It was observed that the work of petitioner has been destroyed by the government, therefore liable to pay damages to artist.

Analysis of The Charging Bull Case

Moral rights under the copyright law have been developed through legislation by various countries. Recently, In U.S. the charging bull case is pertinent to note while analyzing moral rights.

Background of the charging bull case

The charging bull sculpture is of bronze and made by Sculptor Arturo Di Modica which was placed in Financial District of Manhattan, New York City in 1989. Arturo Di Modica made this sculpture by his own money and brought this sculpture to city on the occasion of Christmas day as a gift to New York City. Originally this was placed in front of New York Stock Exchange, but after the public protest, the position of the sculpture was changed. Over the period of time, this sculpture has gained public respect and recognition, thus became centre of attraction of the New York City. The charging bull has been recognized as a symbol of strength and power for American people.

Charging Bull v. fearless girl case In March, 2017 another bronze sculpture of Fearless Girl made by Kristen Visbal as commissioned by State Street Global Advisors, a large asset management company was installed directly in front of charging bull sculpture. The sculpture of fearless girl was so installed on the occasion of International women day as a symbol of women empowerment. This scene is depicted as a bull is aggressively moving and the fearless girl stare down the bull bravely. Therefore, the artist of charging bull demanded to remove the sculpture of fearless girl from the position where it is directly facing the charging bull which changes the image of charging bull from the symbol of strength to negativity. The Artist claimed the protection of moral rights for his Artistic work on the ground that his right to integrity of his work has been infringed.

Issue of moral rights Involved in the present case

The Legal issue involved in the present case is that whether the moral rights of Artist has been infringed under the American copyright Law. In U.S.A., The Visual Artists Rights Act, 1990 (VARA) deals with the moral rights of an Artist. This Act only protects physical work such as paintings, sculpture, drawing and prints. The present case involves sculptures, therefore the VARA would apply. It is pertinent to note that the scope of VARA is limited. This Act protects the right to restrain the other from modification, alteration or distortion of work to an extent that it is injurious to the reputation of the Artist. Under section 106A(c)(3) of the Act, the exception is provided which states that the modification which is a result of conservation or of public presentation including lighting and placement of work, shall not be deemed as infringement of moral Right. In the present case, no physical damage has been caused to the charging bull but merely it is a case of public presentation. Therefore, it can be said that U.S.A. copyright law does not give wide protection of moral rights to the artist.

This is the biggest legal question that whether charging bull would get the protection under VARA or not. This issue involves the copyrights of both the Artist, so it would be interesting to note the outcome of this conflict. It is pertinent to mention that the position of moral rights is not clear in U.S.A. In the charging bull case, no physical damage has been caused to the sculpture, only the context in which the charging bull has been perceived by people has been changed. Arturo Di Modica made the sculpture to spread the spirit of positivity and strength, but the presence of fearless girl sculpture has altered the message also. Though the damage was intangible, yet it affects the integrity of work of an artist. Therefore, this case highlights the concept of moral right which is fundamental to an artist.

Amendment in the scope of Moral Rights

Moral rights are intrinsic to the author of copyright other than the economic rights. Though Moral rights have been recognized internationally, still the scope of moral rights varies nation to nation. Some nation has recognized moral rights in the same line of economic rights, while countries like America has kept the scope of moral rights as limited. It can be traced that moral rights are also important to protect the rights of author other than the economic rights. There is a need of reform so that the author can protect the integrity and identity of his work in dignified manner. Though tangible destruction of artistic work has been recognized by various countries, yet there must be scope of recognizing the intangible destruction also such as in the charging bull case wherein no physical destruction has been caused, yet the image of work has been diminished negatively. It is pertinent to note that the artistic work of author must be recognized along with the reputation or honour of the author.

Conclusion

It can be concluded that the copyright is one of the Intellectual property rights which has been widely recognized. Copyrights can be classified into economic and moral rights. Economic rights have been linked with the commercial benefit whereas moral rights are the personal human rights which has even place under universal declaration of Human Rights (UDHR). Perceiving the importance of moral rights, it has been recognized under Berne convention. Further, the moral rights have been recognized by various countries. The scope of Moral rights is limited to recognize the integrity of work of author. Therefore, there is a need of reform in the moral rights to protect the integrity of work.

Questions

  1. What are Moral rights under the copyright law?

Answer- Moral rights under the copyright law are different from other exclusive rights in various aspects such as Moral rights are more as personal natural of author, Moral rights are intrinsic to author himself and do not subject to transfer and moral rights cannot be waived. The moral rights are available to copyright holder in the various forms such as- Right of attribution(Acknowledge the work of the artist and to recognize the artist by his work), Right to object to false attribution(It is the moral right to object the others from getting false attribution of that work), Right to Integrity of the work(The right to oppose the any modification or alteration of the work which is detrimental to the honor of author) , Right of Association (The right to prohibit the association of artistic work with services, product or Institution) and Right of Disclosure(This right authorizes the author to decide that his work should be published or not).

2. Discuss the origin and historical development of Moral Rights.

Answer- The term “Moral Rights” has been derived from French expression “droit moral. Therefore, the origin of moral rights can be traced back to French Law.  The moral rights were first recognized internationally through Berne Convention for the Protection of Literary and Artistic Works, 1886 (Berne Convention). Further, in the year 1928 the revision conference of Berne convention was held in Rome wherein Article 6bis which deals with Moral Rights was added to the Berne Convention. Article 6bis of the Berne convention recognizes the right of attribution and right of Integrity. In 1990, U.S. finally enacted Visual Artists Rights Act of 1990 (VARA). This legislation recognized moral rights under American copyright law, though in limited extent because it covers only physical works include paintings, sculptures, drawings etc. This Act seeks to protect the honour and reputation of artist.

3. Write about the scope of Moral rights under Indian copyright Law.

Answer- Section 57 of The copyright Act, 1957 deals with the author’s special rights which are commonly known as “Moral rights”.These moral rights are independent of the economic rights and such rights remain with the Author of the work even after the transfer and assignment of economic rights. Section 57 recognizes the Right of paternity and Right of Integrity. Above two moral rights have been guaranteed by Indian Copyright law to the author. In Mannu Bhandari v. Kala Vikas Pictures Ltd, The court observed that section 57 stipulates that the moral rights remain with the moral even after the partial or whole assignment of copyrights of work to others. One of the landmark judgments in India concerning moral rights is Amar Nath Sehgal v. Union of India, wherein the court upheld the moral rights of the author. Though the government was the owner of the mural so placed in the Vigyan Bhawan, yet the artist has a right to the integrity of his work and if any such act is the dome which harms the integrity of his work, then the artist can claim moral rights.

4. What is the relevance of Charging bull case in the ambit of Moral rights?

Answer- The charging bull sculpture is of bronze and made by Sculptor Arturo Di Modica which was placed in New York City in 1989. In March, 2017 another bronze sculpture of Fearless Girl made by Kristen Visbal as commissioned by State Street Global Advisors, a large asset management company was installed directly in front of charging bull sculpture. This scene is depicted as a bull is aggressively moving and the fearless girl stare down the bull bravely. Therefore, the artist of charging bull demanded to remove the sculpture of fearless girl from the position where it is directly facing the charging bull which changes the image of charging bull from the symbol of strength to negativity. Though the damage was intangible, yet it affects the integrity of work of an artist. Therefore, this case highlights the concept of moral right which is fundamental to an artist

5. Whether there is a need of change in the scope of Moral rights?

Answer- Moral rights are intrinsic to the author of copyright other than the economic rights. Though Moral rights have been recognized internationally, still the scope of moral rights varies nation to nation. Some nation has recognized moral rights in the same line of economic rights, while countries like America has kept the scope of moral rights as limited. It can be traced that moral rights are also important to protect the rights of author other than the economic rights. There is a need of reform so that the author can protect the integrity and identity of his work in dignified manner. Though tangible destruction of artistic work has been recognized by various countries, yet there must be scope of recognizing the intangible destruction also.


References

[1]http://docs.manupatra.in/newsline/articles/Upload/1EC850DF-EAA0-4E86-BD9B-99E2B16F12BB.pdf

[2]https://www.mondaq.com/india/copyright/537094/moral-rights-under-copyright-law#:~:text=Moral%20rights%20finds%20expression%20in,and%20the%20right%20to%20integrity.

[3] Lesley Ellen Harris, Moral Rights in Canadian Copyright Law, 34 LAW NOW; EDMONTON, 2010, at 1–4

[4] Gunlicks, 2001, p. 614.

[5] Ahuja, V.K., “Law Relating To Intellectual Property Rights”, Lexis Nexis Publications, Second Edition, 2013.Pg. no. 81.

[6] wipo.int/treaties/en/text.jsp?file_id=283698#P123_20726

[7] file:///C:/Users/abcd/Downloads/SSRN-id2487029.pdf

[8] Francina Cantatore & Jane Johnston, Moral rights: Exploring the myths, meanings and misunderstandings in Australian Copyright Law, 21 DEAKIN LAW REV. 71, 73 (2016).

[9] Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 HARV. INT’L L.J. 353, 359 (2006)

[10] THE COPYRIGHT ACT, INDIA 57 (1)(b) (1957), Available at: http://copyright.gov.in/CprAct.pdf

[11] AIR 1987 Del 13.

[12] Amar Nath Sehgal v. Union Of India, 117 DLT 717 (2005)

[13] https://www.investopedia.com/terms/c/charging-bull.asp

[14]https://law.yale.edu/mfia/case-disclosed/charging-bull-and-fearless-girl-conflict-between-artists-rights-and-first-amendment-freedoms

[15]file:///C:/Users/abcd/Downloads/ABattleBetweenMoralRightsandFreedomofExpression_HowWoul.pdf

[16] AIR 1987 Del 13.

[17] Amar Nath Sehgal v. Union Of India, 117 DLT 717 (2005)

Leave a Reply

Your email address will not be published. Required fields are marked *