October 10, 2011
J. SEDFREY S. SANTIAGO
COPYRIGHT is the most wellknown of artists’ rights, but it is not the only one. When an artist’s artwork, say a painting, is altered by another person without the artist’s consent, what is violated is not copyright but the artist’s moral rights. A concrete example of this is the unauthorized revisions made on a mural created by the Neo-Angono Artists Collective some years back. The changes, done upon the buyer’s instructions, were designed to tone down the mural’s political statement.
For instance leftist marks, like the alibata K on a cigarette vendor’s arm, were drawn over; in this case to make it look like a heart pierced by an arrow.
The term “moral rights,” which is of French origin, is not defined by the Intellectual Property Code of the Philippines, but it lists particular rights constituting moral rights. The essence of the right is to protect the artist’s reputation. As the late UP Law Professor Esteban Bautista said: “(W)hen an artist creates, be he an author, a painter, a sculptor, an architect or a composer, he does more than bring into the world a unique object having only exploitative possibilities; he projects into the world part of his personality and subjects it to the ravages of public use.”
Under the Code, there are four specific moral rights: 1) the right of attribution (droit à la paternité), 2) the right to alter the work before its publication, or withhold the work’s publication (droit de retrait ou de repentir), although in French law the right to determine when and how to make the work public is known as droit de divulgation, 3) the right to restrain the use of the artist’s name with respect to any work not created by the artist, or to a distorted version of his or her work, and 4) the right of integrity (droit au respect de l’oeuvre).
Of the four, the right of integrity is said to be “the oldest as well as the best known” and “most essential.” As Bautista wrote, “(t)his right has its rationale in the need to protect the creator’s honor and reputation. To deform his work is to present him to the public as the creator of a work not his own, and thus expose him to criticism for work he has not done.”
This right to prevent alterations or changes on the work remains with the artist even after the work has been sold to a buyer. And this is illustrated by a case in Germany where an artist sued his client who paid another to cover the naked sirens in a painting just because the client did not like the nudity. The court favored the artist because what the client did infringes on “the artist’s right to present his work to the public in its original form.”
An exception to the right is the necessary editing, arranging or adaptation of a work that is intended for publication, broadcast and other similar uses. But the editing, arranging or adaptation can be done only if the artist does not object to it beforehand. One other situation not covered by the right is when the client destroys the work that he or she has bought for whatever reason. Such act will not violate any rights of the artist. The reason for this is because the right to prevent distortion or mutilation does not include the right to prevent destruction of the work by the purchaser-owner. As Lerner and Bresler put it the purchaser-owner is “simply exercising a traditional property right, the right to destroy.”
Moral rights are different from copyright in that they are not an economic right; thus, the artist cannot sell them; i.e., they cannot be made objects of commerce. This non-economic nature notwithstanding, the right to integrity could still affect the artist’s economic wellbeing. In a previous article I have written that “(i)n the art market, demand for an artist’s works is, to a significant extent, dictated by his reputation. This reputation inarguably builds on the integrity of the artist’s works that emanate from his genius and personal view of the world; works that are his own, untouched by others.” A work tampered without the artist’s authority can ruin his reputation, especially if the alteration has adverse effects on the work’s aesthetics. This in turn can have a telling effect on the artist’s market.
On the other hand, the two rights are similar because moral rights are also protected by the IP Code for up to 50 years following the author’s death. In case the artist dies, the rights are posthumously enforced by people so chosen by the artist prior to his death, or by his heirs; and in the absence of the first two, by the director of the National Library.
Another similarity is the fact that the IP Code imposes the same punishment for infringers of copyright and moral rights. Besides fines, the penalty of imprisonment is also imposed on violators of the law, and this could range from one year to three years, up to six years and one day to nine years. In short, violating the artist’s moral rights is a crime.
The question is: Will the artist—make that a Filipino artist—sue a patron?