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VIC Intellectual Property Law Dispute Over Mentor's Sculptures?

Discussion in 'Intellectual Property Law Forum' started by DaleA76, 25 September 2016.

  1. DaleA76

    DaleA76 Active Member

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    Hello,

    I am not sure if I am in the right section.

    Someone's told me that intellectual property law is the law that this is about.

    I am a artist who creates sculptures from many different materials. I need to know my rights before I take this further I am upset about whats been happening.

    My mentor and I used to have studio in in Melbourne. My mentor passed away 4 years back. He created a set of 2 sculptures that was housed in near a building in the city that he was asked to do. His name is on the sculptures so it is quite well known, i dint think i should name names.

    My mentor took a lot of pride in his work and the thing is we've seen that many people will for example stick cigarettes in the mouths of these characterurs he has created and put hat made out of rubbish some time and his partner has seen pictures on the Facebook and everywhere with the sculptures with these things on.

    There is also a book made by a man who documents various art forms and hes taking many pictures of the sculptures in the state that they are in and they are features in his book which upsets us.

    I do not know but both his widow partner and me are upset by this but not sure if we can do anything about this.

    My understanding of the law is not much just like my language but can we do anything about this?
     
  2. DaleA76

    DaleA76 Active Member

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    Can anyone help me? I just want to know if we have a leg to stand on and if its worth going to a lawyer?
     
  3. Leonard Mancini

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    The only area of law that will be relevant to this issue will be a creator's moral rights under copyright. The holder of the artists moral rights can prevent an art work from being treated in a derogatory manner. Given that your mentor is deceased it will involve a question of whether the moral rights are held by the estate or widow as these rights are usually personal and inalienable. It does offer a potential avenue for seeking redress however.
     
  4. Leonard Mancini

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    What are moral rights?Copyright. The principal director, principal producer and principal screenwriter of a film each have moral rights in that film.

    Only individuals can have moral rights so if the film producer is a corporation, it has no moral rights in the film. However a group of individuals may all be able to claim moral rights as co-creators.

    Moral rights cannot be bought or sold or given away; however after the creator passes away, the moral rights can be exercised by the personal representative of the creator, for example, the executor or administrator of the creator’s estate.

    Duration of moral rightsPerformers' rights.

    When can moral rights be ignored?Australian Directors Guild website and which acknowledges the moral rights of the creators of the film and the script, but sets out a series of acts to which they consent so that the producer has the flexibility it needs to commercialise and exploit the film. It also provides a standard process for the producer to obtain the consent of the director and scriptwriter to other material alterations to the film which the producer wishes to make.

    Defence of reasonableness Arts Law’s template contracts contain clauses for this purpose.

    Notification procedures for artistic works letter of demand for moral rights infringement which you could use. Alternatively, Arts Law can give you a referral to a lawyer who can draft the letter for you though this usually will be at a cost to you based on the lawyer’s fees.

    Arts Law has a template Letter of Demand – Moral Rights Infringement. If you are not successful in negotiating a successful settlement, you can consider Alternative Dispute Resolution (ADR). Arts Law has a low cost ADR Service. For more information see Alternative Dispute Resolution Service - Guidelines.
     
  5. Iamthelaw

    Iamthelaw Well-Known Member

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    The sculptures would be normally be classified as artistic works. Given what you've said, they've been converted into photographs and sold via a book. The copyright owner (whoever has inherited the copyright) has the exclusive right under s31 to make reproductions and to publish the work. (Also see s29). Therefore the photographer may potentially be infringing through doing these thing - However there is a couple of things to note:

    Firstly is that publication of only a substantial part of a work does not appear to infringe the publication right in s29(2), so you'll need to ask yourself whether what has been published in the book is the whole or only a part, albeit substantial of the underlying artistic work. This was depend on how much of the original image can be seen in the reproduction. If it is only a part, there would be no infringement of the publication right, though there still may be an infringement of the reproduction right. It's difficult without more facts but s29(3) may overturn this as supplying the public photographs of the sculpture does not constitute publication of the sculpture.

    However, if any copyright infringement would be found to have occurred, it is likely that it would be in a commercial context and therefore people may be guilty of criminal offences. Are the sculptures only temporarily situated where they are? If only temporary, s68 provides exception and sets out that in these circumstances there would be no infringement.

    As Leonard has pointed out above, there is merit in moral rights.

    The sculptures (from what you have said) have been tempered with in a couple of ways. Thus the right of integrity of authorship becomes an issue. Has it been infringed - By members of the public or by the bloke that photographed them into the book?

    Snow v Eaton Centre in Canada provided that tying red ribbons around the necks of ornamental geese at Christmas was held to be an infringement of a similar provision. Therefore, the items in your instance are all arguably material alterations of the original sculptures.

    The next question that must be asked is whether the treatment of the sculpture is prejudicial to the honour or reputation of the author. This is likely to be quite hard to prove – why should people think less of the author just because the works have been humorously vandalised? Much may depend on how broadly the term ‘honour’ is read. Is it possible to say that an author’s honour has been prejudiced if a work appears to the public in a way that the author did not intend? Is ‘honour’ broad enough to encompass the author’s dignity or artistic vision?

    Moral rights cannot be inherited, so action would have to be taken by the author's executor - The widow may or may not be this person.
     

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