‘Flight’ of moral rights

GAYATRI DASS

WE OFTEN hear about the economic rights associated with copyright and related rights such as the rights of communication, adaptation, reproduction and distribution, also known as the CARD rights. These economic rights allow rights holders to derive financial reward from the use of their works by others. However, it has been argued that moral rights at times remain in the shadows undiscussed.

Moral rights

Trinidad and Tobago is party to the Berne Convention which is an international treaty governing copyright which requires member countries to grant to authors:

(I) the right to claim authorship of the work (sometimes called the right of paternity); and

(ii) the right to object to any distortion or modification of the work, or other derogatory action in relation to the work, which would be prejudicial to the author’s honour or reputation (sometimes called the right of integrity).

These rights are generally known as the moral rights of authors which allow the author to take certain actions to preserve the personal link between himself/herself and the work. The Berne Convention requires these rights to be independent of the author’s economic rights, and to remain with the author even after he/she has transferred his/her economic rights.

Moral rights in TT

This is encapsulated in Section 18 of the Copyright Act Chp 82:80 which addresses moral rights and states that independent of an author’s copyright, even where an author is no longer the owner of his or her copyright, an author has the right to (i) have his/her name indicated prominently on the copies and in connection with any public use of his/her work, as far as practicable, (ii) to not have his/her name indicated on the copies, (iii) to use a pseudonym or (iv) to object to any distortion, mutilation or other modification of, or other derogatory action in relation to his/her work, which would be prejudicial to his/her honour or reputation.

Plight of a Canadian artist

For those who learn through the use of examples and are fans of the Great White North, the Canadian case of Snow v Eaton Centre (1982) 70 CPR (2d) 105 is instructive. What are the basic facts?

Michael Snow was an internationally renowned Canadian artist who was commissioned to create a sculpture entitled “Flight Stop” to be installed in the Eaton Centre (shopping centre) in downtown Toronto. The sculpture comprised 60 separate elements, each representing Canadian geese in various sizes and flight positions.

In mid-1982, management at the Eaton Centre commenced plans for the decoration of the complex in anticipation of Christmas. The plan involved attaching large red ribbons to the necks of the 60 geese and commercialising same on posters, shopping bags and banners. Snow was not consulted in advance of this plan being put into execution. Snow argued that the additions “jarred the harmony of his naturalistic composition, altered its basic character and purpose, and ultimately affected his artistic reputation.” He requested the ribbons’ removal. (Adapted from the University of Cambridge, Centre for Intellectual Property and Information Law.)

However, the Eaton Centre argued that it had already invested financially in the decorations and that it had the mandate to exploit all or parts of Flight Stop to fulfil the commercial opportunities of the centre and further that Snow was aware of the commercial usage that the work was to enjoy.

What did Snow do at this point? Snow filed for an interlocutory injunction against the owners, lessors and managers of the Eaton Centre to compel them to remove the ribbons from the sculpture. He claimed that the decorated geese amounted to a “distortion, mutilation or other modification” of his work, and that his honour or reputation had thereby been prejudiced.

What was the holding of the court? Justice O’Brien found for Snow and ordered the removal of the ribbons from the geese sculpture. He held that the decorations did “distort or modify” the work, although he did not state that they “mutilated” it. As to whether the distortion or modification would be “prejudicial to Snow’s honour or reputation, O’Brien posited that those words involved “a certain subjective element or judgment on the part of the author so long as it [was] reasonably arrived at.”

O’Brien was prepared to give considerable weight to the artist’s views on this question, so long as they were “reasonably arrived at.” In the instant case, this was satisfied by examining the artist’s own perception, supported by credible testimony from a number of other well respected artists and people knowledgeable in that field.

Be aware of your moral rights

One principle rights holders can take away from this seminal case is that moral rights (here the right of integrity) hold value and ought not to be sidelined. Rights holders should bear in mind the moral rights they hold in their work, especially when entering into arrangements for the use of their work.

Gayatri Dass is an attorney

The “Flight Stop” sculpture at the Eaton Centre in downtown Toronto.
Photo by Simon Law (July 2, 2006)