Moral Rights Legislation 2000

In December 2000, the federal government passed legislation that awarded artists moral rights to their work. "Moral rights are the rights individual creators have in relation to copyright works or films they have created".

The creator’s moral rights include:
    • The Right of Attribution
    • The Right of Integrity

  • Moral rights are separate from the economic rights of the copyright owner, such as the right to reproduce the work or communicate it to the public. The creator of a work, who holds moral rights, is not necessarily the owner of copyright in the work." ( March 2005) This gives artist rights to take action if they are not acknowledged as the creator of their work or to take action if their work is falsely attributed to someone else. This is the moral right of attribution.
  • Moral rights also include the right to take action if their work is treated in a derogatory way. This includes treatment that harms, mutilates, destroys, distorts or alters the work, or exhibition of the work in such a way that it is prejudicial to the to thee artists reputation. This is the moral right of integrity.
  • Moral rights lasts for the life of the artist plus 70 years, except in the case of films, when Moral Rights only last for the lifetime of the creator.
  • Moral rights cannot be transferred, sold or assigned to another person until their death when the artist's legal representative assumes responsibility for them.
  • Only individual creators have moral rights.
  • Someone using copyright work may need to get permission from the creator as well as the copyright owner.
  • Courts can award a range of damages for infringements of moral rights.
  • There are a number of defences and exceptions to infringements of moral rights. It is not an offence to remove or relocate site-specific artworks as long as the artist is notified and given access to the work for the purpose of documentation. It is not an offence to destroy a moveable work as long as the artist has the opportunity to remove the work. Reasonableness is also a consideration - is the action (destroying, not attributing reasonable in relation to the nature of the work, the purpose for which it is used or relevant industry practice? There is no defence for false attribution.

Moral Rights Issues

Ron Robert Swan , was commissioned by the Melbourne City Council to create a sculpture for the City Square. His work, 'The Vault' was a contemporary yellow sculpture that divided the city. in 1978, after vigorous public debate, the Council moved the sculpture to a site that was not much more than a construction site. Under the Moral Rights legislation he would have been notified of the Council's decision and could have documented the work before it was moved as well as the right to not have his name displayed if this was his wish. Fortunaltely, Swan's work was again relocated, this time outside ACCA, complementing the contemporary gallery and earning praise from Melbourne's public. It is justice that Swan has recently been commissioned to create another sculpture.

Another case that raised issues related to moral rights involved a group called 'Subdivision Art' who purchased an original Picasso lino cut, 'Trois Femmes', 1959 for $13,000 and cut it up into 200 small pieces to be sold separately, at a profit for $200 each. If the pieces had been displayed, the reaction may not have been as volatile.

On the other hand, some artists claim that the Moral Rights Legislation might hamper freedom of expression. There are instances where the destruction of an artwork is an acceptable way of creating a new work. Robert Rauschenberg spent over a month erasing a de Kooning drawing then wrote "Erased de Kooning Drawing, 1953" on the work. He put it in a gold leaf frame and presented the work as his own. He had been interested in creating a work by erasing for sometime, but he was not satisfied with rasing his own work. He wanted to create a work by erasing the work of a great artist. In this case, Rauschenberg had the support of de Kooning, so had the Moral Rights Legislation been in place in 1953 it would not have affected Rauschenberg, but it could raise issues for artists who do not have permission of the artist whose work is to be altered or destroyed.