Striking a blow for moral rights
Jane Glover takes a look at the latest judgment in the case of Radford v Hallensteins
The oft-neglected area of moral rights has been the subject of some rare attention recently, in a case involving some well-known Ponsonby sculptures.
The plaintiff, Mr Radford, is a sculptor. He produced three sculptures which are displayed permanently in Western Park, Ponsonby, Auckland. The sculptures comprise representations of buildings which appear to be emerging at odd angles out of the earth. The defendant, Hallensteins, produced T-shirts bearing images of the sculptures combined with other visual elements, including Hallensteins’ Planet 8 logo, an image of the Auckland Sky Tower, and a representation of an eagle in flight.
Radford’s avowed intention in creating the works was for his sculptures to rise out of the ground “to haunt the people who demolished aesthetic structures during the 1980s’ building boom in Auckland”. His work was apparently intended to comment on and mourn this loss. In light of that, it must have been particularly galling for Radford to find images of his sculptures juxtaposed with an image of the Sky Tower on a commercial range of T-shirts.
Radford claimed that the manufacture and sale of the T-shirts amounted to derogatory treatment of the sculptures, and prejudiced his reputation and honour as an artist. He alleged that this amounted to an infringement of his moral rights under sections 98 and 99 of the Copyright Act 1994.
The substantive proceedings have not yet been heard. However, on 2 July 2009, his Honour Judge Joyce QC issued a detailed decision refusing to strike out the plaintiff’s claim relating to moral rights (Radford v Hallensteins Bros Ltd [2009] DCR 907).
Relationship between copyright and moral rights
This was not the first strike-out application in these proceedings. Two earlier applications had resulted in the striking out of all of the various causes of action based in copyright. It was held that the actual copying of the sculptures, including the production of T-shirts bearing their image, was permitted in terms of section 73 of the Copyright Act 1994. That section permits certain types of copying of buildings, sculptures, and other works that are permanently situated in public places.
Hallensteins argued that the moral rights provisions of the Copyright Act should be interpreted in a way which is consistent with the permitted acts under section 73. It argued that acts falling within section 73 could never, without more, constitute an infringement of an artist’s moral rights, otherwise a party could never avail itself of the section 73 rights without checking with the artist first.
Radford, on the other hand, submitted that section 73 applied only to copyright infringement and did not provide a defence to a moral rights claim.
The issue was not fully resolved, although his Honour did accept that moral rights serve quite a different purpose from copyright. Copyright governs the commercial exploitation of a work, and can be bought and sold. Moral rights, on the other hand, protect the integrity of the work and are inalienable. They are based on the conception of the artistic work as an extension of the personality of the artist, which requires dignity and protection.
Was there attribution?
Radford claimed that by placing the graphic image of the sculptures on the defendant’s T-shirts and adding the Planet 8 logo, the defendant created an association in the minds of the art-buying public between the sculptures, the plaintiff, and the defendant’s clothing brand. It was not claimed that this association was of a “trade source” character which might amount to a representation under the Fair Trading Act 1986. Rather, it was suggested that the association was something much more visceral and less capable of articulation, but which nonetheless damaged the plaintiff’s reputation as a serious artist by placing his work in a cheapened context. The artist himself expressed this view in strong terms in a letter he wrote to NZLawyer following an earlier article on this case (NZLawyer, issue 61, 30 March 2007). He said:
“I’m fighting this case to protest about what I feel has been the careless commercial exploitation of my art work and damage to my reputation... I believe that having cheap, distorted screen prints of the largest works I have ever created appear on an unknown number of $16.95 T-shirts, sold around New Zealand by Hallensteins, has put into action a chest-mounted billboard campaign associating my work with Hallensteins’ Planet 8 brand.”
By contrast, Hallensteins said that there was no attribution, ie no implication that Radford, a sculptor, would have created the graphic images. According to Hallensteins, there was nothing to relate the image to the sculptor, and no room for the view that the T-shirts had any sponsorship, approval, endorsement, or licence from Radford. It asserted that “there is quite simply no way in which the items complained of are likely to be regarded as the work of the plaintiff”.
His Honour refused to accept the defendant’s factual assertion, however; it is axiomatic that on a strike-out application the Court is obliged take the most favourable interpretation of the pleadings vis-à-vis the plaintiff. For the purposes of the strike-out application at least, it was to be assumed that by selling the T-shirts, the defendant had attributed the representation to Radford or made it likely that it would be regarded as his work.
What is the test for “prejudice to the honour or reputation of the author”?
Counsel for Hallensteins submitted that the moral rights regime in New Zealand is narrower than its European counterparts. He suggested that in New Zealand, mere distortion of a work, or even mutilation of the work, would not give rise to a remedy unless the reputation of the artist were shown to be prejudiced within the terms of the statute. He also submitted that the weight of the authorities suggested that prejudice was to be determined objectively, rather than in terms of the subjective views of the author.
Judge Joyce QC disagreed with this assessment of the authorities, saying that the question of whether an objective test is the correct test is not settled law. Moreover, it was not a matter which could be addressed in a strike-out context. No matter which test was applied, the factual issue as to whether or not there had been prejudice to the plaintiff’s reputation or honour was a trial issue.
Does the derogatory treatment need to be of the work itself?
Hallensteins also argued that the actual sculptures themselves must have been modified in order for the artist’s moral rights to have been infringed. Judge Joyce QC did not accept this submission. His Honour took the view that something done to a copy or reproduction of the work could suffice, observing that adding a moustache to a copy of the Mona Lisa, for example, could amount to derogatory treatment of the original work.
Conclusion
In many ways, this decision is tantalizing. It sets out the likely boundaries of the battlefields in relation to moral rights’ protection, but leaves much of the actual battle for another day.
Unless the proceedings settle, a full trial is expected to follow in due course. Given the paucity of jurisprudence in this area, I am sure I am not the only IP lawyer hoping for a full trial and a thoughtful, well-reasoned judgment to follow.
Jane Glover is a barrister with Bankside Chambers. She can be contacted on 09 308 0515 or jane.glover@xtra.co.nz.
NZLawyer, issue 132, 19 March 2010