It was reported in the Singapore press that several pieces of art work had been missing after the building owners renovated their premises. Some, if not all, might have been destroyed in the course of renovation. Is there anything that the artists can do to prevent this or at least salvage their art work for dislay elsewhere?
Modern artists have benefited from the enactment of moral rights laws throughout most developed countries during the 20th Century. Moral rights protect the honour and reputation of creators. The rationale for moral rights is that creative material is an emanation or extension of the creator’s personality, and what is done with their material may affect their standing and reputation. Unfortunately, such rights only exist in limited form in Singapore.
In UK, the Parliament enacted moral rights provisions in the Copyright Designs and Patents Act 1988. These provisions give artists, during their lifetimes and for 70 years after their death, the legal right to object to ‘derogatory treatment’ of their works in ways which damage their honour, integrity and reputation. Such ‘treatment’ includes any unauthorised addition or amendment to, deletion from, or alteration of, their works; but does not include the right to prevent the destruction of their works.
In Singapore, it is even more restrictive: it only prevents the false representation of altered works as unaltered works of the artist.
Moral rights laws derive from international intellectual property conventions which have been signed by most countries in the developed world. In the case of moral rights laws, it is the terms of the Berne Convention which require the following: Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honour or reputation’.
France was the country that originally developed the notion of moral rights, in French language and culture known as ‘droit moral’. These in turn flow from the broader social concept of droits d’auteur – author’s rights. In France today, the droit moral does give artists the legal right to object to, and prevent, destruction of their works.
In the UK, a most celebrated case occurred concerning Graham Sutherland’s portrait of Winston Churchill. In 1954, Sutherland was one of the UK’s most renowned portrait painters. He was commissioned by Parliament to paint Churchill, with a view to the picture being gifted to Churchill on the occasion of his 80th birthday. This was done, but the painting disappeared from public view. It is well known, and documented, that Churchill loathed the picture: “it made me look half-witted, which I ain’t”.
Churchill died in 1965 and his wife in 1977, at which point the executors of Lady Churchill’s estate revealed that she had destroyed the work (although unconfirmed rumour has it that Churchill’s mistress did the deed in 1955). Following the announcement of the destruction, Sutherland is reported to have viewed it as ‘an act of vandalism’, but acknowledged that ‘I know Sir Winston didn’t like it’. This publicly debated incident was the first time for many years that issues surrounding the destruction of artworks occurred in the UK. Art critics, historians and curators entered into public debate to declare that the work was of excellent quality, and also to comment on the right – or otherwise – to destroy it: should the right to own property, and do with it as you will, override the public’s right to benefit from the experience of works of art; and so on.
Copyright law concerns the artist’s economic right to prevent others from making unauthorised financial gain from the product of the artist’s skill and labour but moral right concerns wrongs to the artist’s reputation, an equivalent to artistic laws of defamation. This distinction is an important one in Europe, where the EU is keen to harmonise the economic laws and frameworks of its member states but not of its member states moral rights laws.
In the USA, the California State legislature enacted a provision which gave the public a right to object to destruction of artwork (see California Civil Code, Section 989), a development that went much further that the French droit d’auteur (the author’s right). In 1989, the US Congress enacted The Visual Artists Rights Act, a federal statute includes a prohibition of destruction as well as derogatory treatment of artwork.
Had art work been destroyed in the course of renovation of buildings occurred in (a) the US, the public would be able to object; or in (b) France, the artists whose work was destroyed would have been able to object; but not so in Singapore, which places a higher premium on private property rights.