Moral Rights Around the World: Two Case Studies


Steve and Katie speak with legal scholar Mira Sundara Rajan regarding the international landscape for artist moral rights protections, including the adoption of moral rights laws in the developing world, common law versus civil law jurisdictions, and the connection between moral rights and cultural heritage concerns.  Steve, Katie, and Mira dive into two case studies: the Indian case Amar Nath Sehgal v. Union of India (2005) involving government removal of and damage to famous murals from a government building and the more recent controversy surrounding the removal of the Picasso stone murals on the Y-Block government buildings in Oslo, Norway.

Resources:

Amar Nath Sehgal vs Union Of India (Uoi) And Anr. on 21 February, 2005

Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v. Union of India

https://ipkitten.blogspot.com/2018/03/the-5-pointz-case-should-works-of-art.html

The Moral Rights of the Artists in Oslo’s Y-Block

https://www.nytimes.com/2017/10/19/arts/oslo-picasso-mural.html

https://ipkitten.blogspot.com/2020/06/guest-post-art-is-wall-picasso-nesjar.html

https://www.nytimes.com/2020/07/30/arts/design/picasso-fishermen-mural-norway.html

https://www.smithsonianmag.com/smart-news/moma-urges-norwegian-government-preserve-site-picasso-murals-180974874/

https://www.artnews.com/art-news/artists/picasso-y-block-controversy-murals-explained-1202696403/


Episode Transcription

Steve Schindler:  Hi, I’m Steve Schindler.

Katie Wilson-Milne:  I’m Katie Wilson-Milne.

Steve Schindler:  Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.

Steve Schindler:  Hi, Katie, how are you?

Katie Wilson-Milne:  I’m doing well, as well as possible during the continued pandemic, but I’m excited today that we’re going to talk to a great guest and we’re going to talk about a really interesting topic.  We’re going to take a look at two foreign moral rights fights and the international framework in which moral rights are considered more broadly.  We’ve talked a lot on the podcast already about the limited moral rights regime under the Visual Artists Rights Act in the United States.  And we’ve referenced certainly the birth of these dignity based protections in France and Germany to some extent, but we look forward today to broadening our perspective and talking about the wider picture of moral rights as it stands now in the world.  So our excellent guest, Mira Sundara Rajan holds a doctorate in intellectual property law from Oxford University.  She was a professor of intellectual property law at the University of Glasgow, where she directed the LLM in intellectual property in the digital environment.  She previously held the Canada Research Chair in Intellectual Property Law at the University of British Columbia in Vancouver, where she was also a tenured Associate Professor of Law and the founding doctor—director, excuse me, of the IP Law program.  Mira has also held numerous visiting fellowships and professorships at institutions including Oxford University, in France, in Italy, in Russia, in India, in Japan, as well as in the United States, at Stanford and NYU.

She also works as a consultant with public and private organizations including local and national governments, leading international law firms, cultural institutions, and artists in different parts of the world, notably in India and the United States.  She has authored numerous scholarly books and articles on international copyright and moral rights issues and is currently a visiting professor at UC Davis Law School in California.  Welcome, Mira.

Mira Sundara Rajan:  Thank you very much, Katie.

Katie Wilson-Milne:  I thought we’d start by asking you to tell us a little bit more about your academic background and your current scholarly focus.

Mira Sundara Rajan:  Absolutely.  So, I basically am a Canadian-trained law professor who then went to the UK to do my doctorate specializing in copyright law.  And during the course of my law studies, I became very interested in the area of the moral rights of authors and that emerged in a most unexpected way that’s perhaps worth telling you the short story that’s behind that interest, because I actually come from a literary family.  And so the grandfather of my mother is a famous Indian poet.  He’s the national poet of India, Subramania Bharathi.  And when I was in law school, I was taking a course in copyright law and trying to find my footing, not just in copyright but actually in law more generally, trying to find out what I was interested in.  And suddenly I realized that I had a very interesting copyright law story right in my own family involving this particular poet.  And the interesting story was that he had been a nationalist writer who wrote actually about the cause of Indian independence when India was still under British rule.  And so his writings were considered to be very important for India when the country became independent, and the government chose to make them public.  So they actually gave the copyright in those writings to the Indian public.  And that led to lots of interesting results, including an explosion of publication of his works, which I think is a great thing, but on the other hand, lots of problems involving the integrity of those works, the misattribution of other writers’ works to him, and other problems of this type, which I gradually came to recognize would be covered by a doctrine of copyright law known as the moral rights of authors.  And so that actually was the window through which I saw moral rights for the first time and realized that there might be a lot of really interesting practical implications for that aspect of the law.  And I ended up doing a paper on his copyright situation, which was the first piece of legal research that I wrote as well, which ultimately ended up getting published.

So that in a nutshell is how I got into the area of copyright and why I came to develop a special interest in the area of moral rights, which it turns out is an area that’s not necessarily studied as much as the economic rights, definitely not here in North America, I would say.  And even in Europe, to be honest, it tends to take a back seat to the economic rights aspects of copyright law.  So in that sense it was a field of scholarship that was also fairly wide open.  So I ended up focusing a lot of my written research on moral rights and did a large book in this area, which I’m currently updating now—fairly large book, about 550 pages, where I focus just on moral rights and the international treatment of this doctrine in different places in the world.

So one of the really interesting things to consider is that the moral rights aspect of copyright law today is probably the most widely accepted aspect of copyright law around the world, meaning that practically every country in the world has some treatment of moral rights in their national legislation.  And it’s funny to think actually that in this area the United States lags a little bit behind.  And usually we trace the origin of this doctrine, as you’re both well aware, to the countries of continental Europe.  So, it’s associated with a civil law tradition of copyright, but the interesting thing is that it’s been embraced so wholeheartedly in other parts of the world, notably in developing countries.  And typically when we think about comparative law, I think we can break down the world’s legal systems basically into four groups.  So I would say common law, civil law, what was once the socialist countries, but we now call them the post-socialist countries of central and Eastern Europe, and then developing countries, which of course is a huge heterogeneous block.  But if we look at these four groups, what we see is that moral rights are enthusiastically embraced in the developing countries.

And in fact, they’re also very well-received in the post-socialist countries, where now there’s quite a bit of emphasis on the positive connections between freedom of expression and the importance of protecting individual authors through, among other things, the moral rights aspect of copyright law.

Steve Schindler:  Why do you think that is, Mira?  Why do you think that these groups of countries are so anxious to embrace moral rights?  Because as we’ve said on this podcast before, the US was so reticent to embrace moral rights and really did so kicking and screaming when they finally ratified the Berne Convention in 1990 and implemented it through the Visual Artists Rights Act.  But it was really at the time, the outreach of software companies whose intellectual property was being pirated around the world that finally convinced our Congress to enact VARA.

And so I think there’s always been this tension between sort of property rights-based view that we have of copyright and the view of moral rights that really started in Europe with this notion of the artistic genius breathing her soul into the artwork.  And so I’m just curious why these other groups of countries have embraced moral rights so much.

Mira Sundara Rajan:  Well, I think that that’s, again, a fascinating situation that you outline.  And I think that there is something about the moral right of the author that’s quite intuitively perceptible in most cultural contexts around the world, including the United States, to be honest.  I think that a lot of people understand, either through their own experience or through their experience of reading and getting exposed to the arts and culture in some form or another, they understand that idea that an author might have a special connection with their work.

That’s something that as we get into the digital environment and more and more people are involved in a sense in creation, even in some very small way, I think there’s an awareness that when you create something you might have certain feelings about it.  You might want to see it develop in a certain way, be used and shared in certain ways and so on.  And so I think that’s probably at the heart of why this area of the law has found so much wide acceptance, because certainly in the doctrine, it becomes a technical area of the law just like any other aspect of copyright, but in terms of the theory and the basic idea of this connection between the author and the work, the idea that you might end up doing something hurtful to the author by harming the work, I think that’s something that’s quite easily perceived by average people.  And so when it finds its way into the law, I think that’s the process whereby that happens.  It’s got a certain amount of popular recognition or popular comprehensibility, and we go from there to being able to include these ideas in the law.

Katie Wilson-Milne:  I think that’s an interesting point, that there’s an intuitive appreciation that an artist’s work product is more personal than another professional’s work product.  I don’t know that that’s always the case, because it’s a subjective question, but what I think is less intuitive from the US perspective is that the result of that connection between an artist and her creation is that they should have an ongoing legal right to control what happens to that object after they choose to sell it.

And because we’ve been conditioned, I think, to think about property in a uniform sense, a beautiful piece of furniture or a work of art or whatever it is, once it’s sold we think that the person who owns it should get to do what they want with it.   And so I think there is a tension and understanding here that we’re still seeing play out in the litigation in the United States.  And one thing that’ll be interesting talking to you today about is whether we see that tension as strongly in other parts of the world.

The two cases we’re going to talk about today have to do with government actors.  So I guess it’s weighty because of that, and maybe it’s slightly different because it’s the government acting rather than an individual collector destroying a work or an individual institution.  But it’s just interesting how different regimes deal with that tension or discomfort as it may be.  So before we dive into these two examples, Mira, I did want to get a sense of the actual requirements of various moral rights regimes around the world.  We’re talking here, again, listeners, about the right of attribution and the right of integrity, basically oversimplified to be the right to be credited for the works that you create and also the right to control or prevent mutilation, destruction, alteration to some degree, of your work after it’s no longer in your physical possession and title has passed.  So I know that these components of moral rights do differ around the world with respect to interestingly whether the artist’s reputation is important or not.

Is there a subjective or an objective standard?  Do moral rights kick in if the work is just mutilated or is there some other requirement that is a threshold for an artist to bring a moral rights claim?  Also, how long does the term of moral rights last?  What kind of mutilation or destruction will trigger a moral rights claim?  I don’t know if you can speak to that, whether there are patterns or even generally how widely these moral rights statutes vary.

Mira Sundara Rajan:  So as you pointed out, the two basic rights that are widely recognized are attribution and integrity.  And in every piece of legislation in the world that I’ve come across we see those two basic rights protected.  Actually there’s little mystery as to why that would be the case because the model provision for all of that, as you know, is article six bis of the Berne Convention, which basically tells us that all member countries of the Berne Union have to protect attribution and integrity rights.  And just about every jurisdiction in the world at this point is either a member of the Berne convention or, in a few small cases, friendly countries to the Berne Union.  So that’s our starting point.

And the thing to remember is that the provision in article six bis of the Berne Convention is itself a compromised position and essentially reflects the different interests of common law and civil law countries, their different perspectives when it comes to moral rights.  So it’s not the most extensive form of protection known in the world by any means.  And this is where we get into the situation of additional rights, or subjective, as opposed to objective, ways of looking at those rights.

So if we trace the history a little deeper and go back to the civil law countries where these doctrines are said to originate, there we see a situation essentially that allows us to expand beyond the measures put down in Berne.  So if we take France as our original example, there we see a country that has attribution and integrity rights but also has additional rights, such as the right to withdraw your work from publication if it has ceased to represent your opinions.  And that’s a very interesting right, because there’s a balance that’s struck within that right.  So if an author wants to assert their right of withdrawal, they have to be prepared to compensate the publisher of their work for any losses that they may suffer.  So that’s an example of an additional right beyond attribution and integrity that we can find when we go back to an original moral rights jurisdiction in continental Europe.

Katie Wilson-Milne:  Alright, so we’ll talk about two specific moral rights situations, one in India, and then we’ll speak about one in Norway.  And in both cases, interestingly these cases exist against the background of the nation’s own interest in art as cultural heritage.  And I think it’s an interesting marriage of two quite different doctrines, moral rights and cultural heritage.  But in these cases, because we’re dealing with government actors and a sense of what they should be doing to protect work that was publicly consumable, the broader cultural interests come into play and can become a justification for enforcing strong moral rights.

So that’s a really interesting nuance, Mira, that I know you’ve done some work on, and we’ll try to talk about that as we go along.  So I’ll give a little bit of background on the first case we’ll talk about, which is Amar Nath Sehgal versus the Union of India, and the brief background of this case is that Amar Nath Sehgal was a well-known and respected Indian sculptor.  In the late 50s, the government of India commissioned him to design a bronze mural sculpture for the decoration of a public building in Delhi.  I believe it was the large entry room of that building.  And in fact, Prime Minister Nehru was personally involved in selecting this work, and it was an important time for India as a relatively newly free democracy.  And the ultimate work was completed in the early 60s.  As I said, it was very large, and it became well-known.  It depicted the lives of ordinary Indians from rural to urban environments and was on the wall in the entry space of this building for just under 20 years.  But in 1979, the Indian government decided to renovate the building that it was in and remove the mural from the space and put it in a warehouse.   In the process of moving and storing the work, the mural was damaged and some pieces, including the portion of the work where the author’s name had appeared, were damaged or missing.  The artist eventually became aware of what had happened to his sculpture and he notified the Indian government of his objections to the treatment, but he was ignored.  And Sehgal proceeded to file for an injunction in court to prevent the government from causing any further harm to his mural.

His claim was based on the Indian Copyright Act, section 57, which is what we would call the moral rights provisions, in India called the special rights of authors.  And this case was litigated for like a long lifetime, and there were two separate court decisions, both on the injunction and then on the ultimate merits of the claims in 2005.  So we’ll talk a little bit about those court decisions, what they reveal about moral rights in India, and what changed after that.  I think to start it’s interesting to point out that in this case the government actually owned the copyrights.  So we’re really seeing a distillation here of the moral rights apart from the economic rights, which often are not in these cases or have not been separated.  So here we’re really looking at just the moral rights that the author held, the artist held and the Indian government did hold the copyright that had been assigned to them.  So maybe Mira, you can talk a little bit more about this case and explain what Mr. Sehgal’s arguments were here, and then what were the government’s legal arguments that they were permitted to treat his work in this way?

Mira Sundara Rajan:  Absolutely.  So in this case, Mr. Sehgal’s position was fairly clear.  He had created this mural and it was on display as you’ve described, and I believe the government wanted to undertake some renovations of the building where it was on display and it was in the process of taking it down then to enable that renovation process that the damage to the mural occurred.  And it was badly damaged.  You could almost call it a quasi destruction.  It was broken into pieces, and poignantly the piece where Mr. Sehgal had put his signature was also broken off from the mural as a whole.  So Mr. Sehgal’s situation was extremely straightforward.  He’d created this beautiful work of art that had become famous and now it was lying in pieces, and he wanted to do something about it, at the very least to prevent further damage from occurring to the mural.  And from a legal point of view, this situation couldn’t be more straight forward under the Indian Act, because we had section 57, which is called the special rights of the author in Indian law, but it absolutely is about the moral rights that the author.  And section 57 clearly said that you cannot cause damage to an artwork and expect that to be approved by the copyright act.  It is a violation of the moral right of integrity of the author, of the artist, if such damage were to occur.  So in a sense this is almost an open and shut case from that point of view.

Katie Wilson-Milne:  Meaning at the time the Indian moral rights doctrine was subjective, meaning no need to prove any reputational damage, just if the work is damaged, that’s it.

Mira Sundara Rajan:  Absolutely.  Yeah, so the Indian law of that time, indeed as you have correctly pointed out, it was a subjective standard in the sense that the assertion of the artist then would be sufficient for us to be able to show a violation of the moral right of integrity.  It’s actually interesting that you bring that up because I personally have never focused on that aspect of the Sehgal case, just because of the damage to the sculpture was so bad that I assumed that even if we were dealing with an objective standard situation it wouldn’t be difficult to show such a thing, that burden of proof would be easily discharged.

But you’re absolutely right to point that out.  And indeed, the Indian law at the time broke up the different possible mistreatments of an author’s work into different sections.  So that’s a little bit of a difficult thing to explain, but if you can visualize that they had, I believe it was distortion and mutilation as offenses in their own right.  And then other actions that were prejudicial to the interest of the author, in particular the reputation of the author as a second sort of sub offense.

Katie Wilson-Milne:  The backdrop of Mr. Sehgal’s case is this extremely broad moral rights provision, which for us in the US is just unimaginably broad, and I’m not sure how any court could really adjudicate any other reputational harm.  What was the government’s response to his— I mean, because they had arguments, this was litigated for decades.  What was their defense to his claim?

Mira Sundara Rajan:  So one of their important defenses, ironically enough, was that the damage to the mural was so bad that it had effectively been destroyed.  The strange thing about that from a factual point of view is that both the government and Mr. Sehgal would have been in complete agreement about that assessment.  As I said before, the damage to the mural was so bad that we could consider it a quasi destruction.  Now, why is that point significant from a legal point of view?  It’s because of international interpretations of the extent of the author’s right of integrity.  Typically we have this Berne formula that tells us that the right of integrity depends on an impact upon the authors reputation as well.  And generally, that’s considered to lead us to the conclusion that destruction is not covered by the moral right of integrity.  So you can damage a work.  The worse the damage is, the more of a claim you have when it comes to the moral right of integrity.  But if the work is actually destroyed, you have no claim anymore.  And the reasoning behind that is because no damage can occur to the author’s reputation at that point.  The author is no longer affected because the work is not in existence.  And I’m providing this rationale for this position, but I have to say that the exclusion of destruction from the right of integrity is well-accepted in continental European countries as well.  Not all of them, but in many of them, even though they may not adhere to an objective standard of proof when it comes to the moral right of integrity.  So even though they may not invoke reputation overtly in their moral rights standards, it’s still generally accepted that destruction is beyond the scope of the moral right of integrity.  So it’s a little bit conceptually unclear to me actually how we arrive at that result, how we can be sure about that result.

And sure enough, you get legal scholars arguing about this issue, with some like myself saying that the prospect of excluding destruction from integrity just seems like an absurd result from a factual point of view.  With due respect and calling myself a lawyer as well, it’s a situation of lawyers going crazy a little bit with our thinking about all of this.  Ultimately the goal of all of this is to protect the work.

Katie Wilson-Milne:  Did the court need to decide that here?  Because I mean, the work was maybe functionally destroyed, but it did still exist.  I mean, it was in storage.  I think the artist argued he wanted it back so that he could repair it.  So was that ultimately really at issue here, or were there other arguments the government made, too?

Mira Sundara Rajan:  Well, I think the trouble is that there was very little that the government could say to justify what had happened, given the two things that we’re talking about here, given the structure of the Indian law, and then secondly the extent of the mistreatment of what was a very well-known work of art.  Accordingly, arguing that the work had been destroyed was one of the things that they could say in order to assert that this was maybe not the greatest thing that had happened but beyond the scope of the Indian law, which was intended to implement article six bis of the Berne Convention.

So the first decision was in 1992, and we just want to notice right away that that was more than a decade after the initial damage occurred.  And for that reason, although it was an interim judgment, it had a certain gravitas.  That was an important point where we were going to see what the courts thought about all of this, and the court came down so firmly, so strongly on Mr. Sehgal’s side.  And when they did so, they basically asserted their own position as advocates on behalf of authors and artists.  And they identified their role as gatekeepers in all of this.  As organizations, the courts, as organizations that were going to assist in upholding authors’ rights against, in particular, frankly, the uncultured approach of the government.  And the choice of uncultured is not my choice of word.  I’m trying to find a way to express the passionate language in which the court actually expresses its disapproval of the government’s position in all of this.

They use phrases like, “government officials who can’t distinguish between the heads of Venus and the heads of Mars,” drawing their comparison from classical sculpture.  And that just helps to convey the passion and the strength of the advocacy which the court firmly espouses in favor of authors and artists.  And I think the court is making a very important point there as well.  They essentially treat Mr. Sehgal’s situation as a sort of test case where they need to take a stand, because there are going to be ripple effects from that decision sending out a signal to all social actors about how works of art and works of culture are going to be treated in the future.

And that’s very much born out by the process of litigation, which as you can see in the Indian context, it was very lengthy, it was very involved.  It required enormous resources of both time, patience, as well as his financial resources of course.  So I think the court was quite right in taking a stand there and saying what we do here is going to send a signal to society, and so we need to be absolutely clear about the principles that we’re standing up for and why we’re standing up for those principles in this case.

So that in a nutshell is what happened at the point of the interim judgment.  And what Mr. Sehgal received concretely then was an interim injunction, which basically prohibited any further mistreatment from happening.  And more than a decade later a court ruling did agree with him on that point and decide that further mistreatment shouldn’t happen.  So it’s really after the fact in a lot of ways, but there’s an important symbolic point that was made.

Steve Schindler:  Right, you can’t help but notice the relief that was given to the author in this case took so long to obtain, that in the interim potentially lots of damage could have occurred.  So even though the opinions were quite strong, you have to question the efficacy of those opinions.

Katie Wilson-Milne:  We’re used to slow litigation.  Litigation is slow.  But this strikes me as comically lengthy process.  And I’m wondering, Mira, why did it take so long for the court to issue its first decision?  And then the second decision is not—there’s not a lot of new facts or—why does it take 13 more years for the court to issue its final decision?

Mira Sundara Rajan:  Yeah well, as you point, out litigation is slow everywhere.  That’s clearly one of the problems that we face in terms of access to justice in lots of situations, including these.  And in India remember that the time period that we’re talking about was actually early independence.  The contract for Mr. Sehgal’s work was concluded in 1957.  And that was actually the year when India adopted its first independent copyright act, was 1957.  So that’s how deep into the post colonial process we’re going.

And so we’re talking about a country that was essentially building a new legal system, a new understanding of copyright law, a new understanding of judicial processes and so on.  So everything was very, very slow.  And India is a large and populous country with, at that time especially, relatively few resources for its population.  So somehow all of that had to be channeled into a court system where plaintiffs could go and expect to get some kind of relief.

And one of the defects of the system, one of the flaws of the system in that situation is that it’s very, very slow.  And I think that the system has been somewhat improved.  Now you have specialist courts to hear certain types of IP complaints and these kinds of structural reforms are being experimented with, but it’s still very much in the initial phases.  And as Katie rightly points out, the period between that interim judgment and the final judgment was also a long period.  And I don’t think that there’s any other special reasons for that, Katie, except that that’s how long it took for this case to grind its way through the processes of the Indian judicial framework.  What is interesting to notice though, is that between 1992 and 2005 when we got the final judgment, the Indian government did get involved in various tweaks to the moral rights provisions through legislative reform.  So in 2005, we have the final judgment in the Sehgal case and something extremely interesting happens there.  Because again, we have a court that undertakes the role of passionate advocate of artists’ rights, just as happened in 1992, but here the court develops a very complex and interesting theory about how the moral rights of authors should be interpreted in the Indian context.  And essentially what they do is they try to unite the author’s moral rights with a broader idea of an interest in cultural heritage and in particular public interest in cultural heritage.  So the legal mechanism by which they do all of this is actually by turning to public international law.  And in a way that’s not such a radical thing to do because the Berne Convention itself is actually an instrument of public international law.  But that’s one of the strange things about these international copyright norms, that they somehow marry private law legal protections with an international public law framework.

And in this case the judge really goes to the extreme in that sense, looking not only at the Berne Convention but at broader international obligations that India has undertaken in the area of cultural heritage, and in particular international conventions on the conservation of cultural property.  And he says, look, we can establish a test.  We can decide whether we’re talking about artworks that are so important that they actually are a part of Indian national cultural heritage.

If we find that we are talking about works at that level of importance, then we have to understand that we have an obligation to protect those works as cultural heritage.  So essentially there are two layers to the protection.  On the one hand there is the artist’s moral right of integrity, but on the other hand there is the fact that we’re dealing with a work that is an important part of cultural heritage, and “national treasure of India” is the language used by the court.

And when we’re talking about works at that stature, then we have to be particularly strong in protecting their moral right of integrity.  And what exactly does the judge mean by that?  He means that works of such stature cannot be destroyed.  And that is required not only by the author’s moral right of integrity, protected in the copyright law, but also by India’s membership in international cultural property conventions, where India has pledged to protect the valuable cultural property that is within its possession.  So that essentially is the legal theory on which the final decision in the case turns.

Steve Schindler:  So I’m interested in this fusion, if you will, of cultural heritage law and moral rights law.  Because in this particular case, it makes some sense, but I wonder whether going forward we have any clear jurisprudence that we’re to follow and who even has legal standing, as we would call it, to vindicate those rights?  Is it the artist, then, who stands in the shoes of the nation, if you will, in terms of protecting its cultural heritage, that all of a sudden the artist’s moral rights, which historically come from the expression of the artist’s person or genius, is now attached somehow to the cultural heritage obligations of a nation?  I’m just wondering if you see this as a problem going forward.

Mira Sundara Rajan:  Well, that’s a wonderfully interesting and important issue that you raised.  And I think that I would like to respond to that actually at three levels.  I’d like to talk about the general policy justifications behind moral rights, and then I’d like to talk about the specific legal theory that informs the case.  And finally, this issue of clarity that you raised, which I guess goes to that question of, is it likely to be problematic going forward?

So if I can start by talking about the policy justifications, you’re absolutely right that moral rights typically are seen as emerging from a theory of the individual genius of the artist, and that idea of a nexus then between the artist and the artist’s own creation.  But I think it’s also correct to say that when we’re theorizing about moral rights, there are many different theoretical strands that play into the idea of the moral right of the author.

And in fact, if we go back to the origin of the concept in continental Europe, that was in the early 19th century and what was actually happening was that in France you had a lot of cases coming before the courts involving these various kinds of interests, the attribution and integrity, interests, and so on.  And the French courts were making those decisions.  But a lot of the theorizing about this was happening in Germany where they were observing what was going on in the courts and trying to develop theoretical explanations and policy justifications for what they saw happening in practice.

And if you look at the German legal theory surrounding all of this, it’s incredibly fertile.  So the theorists come up with lots and lots of different ways of understanding the process of protecting works, protecting author’s reputation, protecting attribution and so on.  And so, in fact, from the very earliest times, as I understand it, of the emergence of the moral rights doctrine, we’ve had this multiplicity of different theoretical strands.  And of course there’s the relationship between author and artist, but there’s also an implication for cultural heritage.   And when you think about that, I think again at a very practical level, that makes a lot of sense because any country’s cultural heritage is composed, to an important extent, of works of individual authorship.  And copyright law is time limited.  So a work is created, it’s associated with the author through copyright law for a period of time, copyright expires, and then it goes into the public domain.  So the public ultimately is the one that inherits all of these works in that sense.  And in fact Victor Hugo has an interesting quote.  He says, “an author’s true heir is the public domain.”  And you can see what he means in this very literal sense.  So in terms of policy justifications, I think that idea of the cultural heritage justification for moral rights has been around for a very long time.  We tend not to emphasize that in our dealings with this area of rights in the United States or in Canada and so on, but it’s definitely there.

And it is a policy aspect that has appealed to India, I think, as a developing country with a slightly different perspective on all of this.  So they’ve chosen, and I think that’s a very conscious choice on the part of the court.  It’s one that makes sense in the broader context of Indian culture.  They’ve chosen to see that link between individual works of authorship and the cultural heritage of the public as something important that they need to protect.

And Steve, you were quite right to point out earlier that that link was emphasized by the context in which this work appeared because it was a work of individual authorship that went to decorate an important public government building; a building that represented not only the Indian state but the Indian people.  So that link was very explicit in this particular type of work.  Now that goes to your question about clarity going forward, I think, because basically the court here has established a standard.  They’re talking about works that are national treasures of India.  How do we decide whether a work is a national treasure of India or not?  Well, the court doesn’t provide a lot of clarification of that issue.  So we’ve got a standard without knowing how we’re going to fulfill it.  And I think there are only two possible answers to how to clarify the question in the future.  One is, are we going to have some legislative reform that explains the standard to us?  I’m thinking probably not.  So secondly, we’re going to be waiting for further clarification from the courts.  And in the meantime, because it could be, and is likely to be a very, very long wait.  In the meantime we’re looking at legal scholars and commentators to explain all of that.  And let me point out for your listeners that actually we have an almost identical situation in the United States with the Visual Artists Rights Act, because the Visual Artists Rights Act sets up a standard as well.

There the standard is relevant to artworks that are considered to be of recognized stature is something that very closely resembles this idea of a national treasure of the country articulated by the Indian court.  Similarly, in the case of recognized stature, we have no legislative explanation.  So we had case law that attempted to clarify what was meant by recognized stature, but in the process set up a test for that standard that didn’t make a lot of sense.

And it was basically not welcomed by the court finally in the 5Pointz case when they were trying to decide whether graffiti was of recognized stature or not.  And what emerged in 5Pointz of course is that expert evidence is going to be very helpful in figuring out what recognized stature means.  And I think that ultimately that too is an approach that can be taken in India, that we might draw upon other treatments, particularly in common law jurisdictions of this particular issue and try to bring those principles into Indian law.

Steve Schindler:  I was thinking exactly of that point on the lack of definition for recognized stature when I asked you the question about clarity.  Because it is one of the problems that we have with VARA, at least with respect to the destruction prohibition which only applies to “works of recognized stature.”  And as you rightly point out, recognized stature is not defined in the statute.  So the courts have had to come up with a way to figure it out and yes, they use expert testimony.

But the problem that you have is if you are a building owner or if you’re in possession of a work, there’s really no way for you to tell prospectively, or not a very good way to tell prospectively, unless you’re dealing with a household name masterpiece, whether or not a work is going to be considered to be of recognized stature because it’s going to require that you get a bunch of experts in a room to tell you.  It is a conundrum, but I think there are, of course, parallels with our statute.

Mira Sundara Rajan:  I would even go a step further, Steve, to add on to what you’re saying that this problem of establishing recognized stature or national treasurer status, it’s not just a legal problem.  At some level it’s also a factual problem.  It’s almost requiring us to look into a crystal ball.  Because take the issue of Mr. Sehgal’s work, he produced that in 1957 and he had a contract to do that.  And I’m sure he was well-known enough that he got that contract, but I don’t know whether anyone could have known in 1957 that he was going to create an important work and that it would become so prominent and so well loved that it would qualify as something like a national treasure of India.

By the time that was decided we were in 1992 or arguably even 2005.  And I think that’s very typical with these things.  The value of these works is not recognized today, and sometimes in fact the more avant-garde they are, the more ahead of their time they are, the longer it takes to recognize their value.  So at what point does that idea of recognized stature actually kick in?  Because it’s certainly not at the point of inception of the work or installation of the work, it’s usually much after that.

Katie Wilson-Milne:  Right, but what we see in VARA, imperfectly, is that the statute does create this concept.  What happens in the Sehgal case in India is that—what’s interesting reading that decision is it’s not at all obvious what legal basis the court makes its decision based on.  It’s an impassioned opinion piece about the theory of protecting art and cultural heritage, but it’s not clear where that comes from as a legal basis or if there’s any textual support.

And I think of course reading the Indian moral rights legislation that is relevant for the time period of that case, it did not itself refer to cultural heritage issues.  And so there’s a little part of my lawyer brain reading this decision that’s sort of like, “well, what are we even talking about here?  Where is this coming from?”  And I don’t know if that’s just different legal style in a different type of legal system that is not so beholden to citing precedent and legislation, but it did leave me wondering what is the legal basis for this.

Mira Sundara Rajan:  Yeah, absolutely.  And in fact that goes exactly to the third point that I wanted to discuss in response to Steve’s comments, the specific theory of the case.  So I must say right up front that Indian law is a very classic common law system.  So, it is by no means less rigorous in terms of the legislation or the use of precedent than any other common law system that I’m familiar with.  In terms of needing to find a legal basis for the theory, we do face that need.

And clearly legislation is not the source in contrast to the situation with VARA.  Again, in VARA what we have are words in the statute with very little jurisprudential clarification about what those words mean.  And in the Indian case, we don’t have the words in a statute, but I think what we have is the court attempting to develop a common law doctrine.  That of course is something that’s possible in our jurisdictions.  The courts can develop these doctrines.

But the great difficulty in the area of moral rights is that there’s so little preexisting doctrine to draw upon, whether, for example in this case, whether India we’re going to draw upon national precedents, previous precedents in the area of moral rights or related moral rights.  There were a few before Sehgal, but just a handful.  So there’s very little case law there.  And then if they’re going to look at other common law jurisdictions and potentially other civil law jurisdictions for guidance, again, there isn’t a large number of precedents in this area.

It’s a relatively small body of case law or case interpretation in the case of civil law countries overall.  So I do think that the exercise is a valid one.  It’s bordering on the edge of the wall there in terms of is this something that courts would normally do in a common law jurisdiction or not.  But I don’t think that that’s by the court’s choice.  I think they have no choice but to do that because there’s nothing really to draw upon in the body of existing law, practically nothing.

Katie Wilson-Milne:  But they could have just found that his rights under article 57 of the Indian copyright law were violated because the work was mutilated slash destroyed, right?  They could have left it at that.  That would have been a recognizable limited ruling, would have given him what he wanted, but they didn’t.  They chose to speak in extremely large broad terms about the value of his art, denigrating the decisions of the government, what art means.  It’s a big poetic decision and you can see through the statutory language that they could have gotten to the judgment through just looking at that legislation, but they don’t.

Mira Sundara Rajan:  You’re absolutely right to point that out.  And I think that takes us into some considerations about how the court sees itself and where it stands in all of this.  Because I do think that there’s a perception, a correct perception, that artists and authors in India generally are greatly disadvantaged.  So that’s where the authors advocacy point comes from.  And I think that in Indian culture there is a tradition that authors and artists make an important contribution.  That’s a recognized part of Indian culture.  But on the other hand they tend to be very dis-empowered economically and socially.  That undoubtedly, I think, is why the court feels that it needs to make a much larger statement.  That’s one of the reasons why it feels it needs to be involved in reigning in the powerful, in this case, the government, which is such a powerful force in Indian society.  And to say that we need to be able to put a limit on what the powerful can do, especially when it comes to our authors and artists who ultimately are responsible for building up our society.  I think that advocacy role, again, going back to that theme, is an important reason why they felt they had to make this broader statement.

Katie Wilson-Milne:  I think the judgment itself seems quite novel and, I don’t know, I guess adventurous.  And they don’t just award him damages, they say, “no, you get to own this work now.  We’re canceling all the contracts, we’re canceling your copyright assignment.  That doesn’t exist anymore.  You get all of it back.”  I don’t know, maybe there was precedent for that.  But that also struck me as the court just had an idea of what it thought the right thing to do is here, and it did not seem to be beholden or tethered really to any legal framework in getting there.

Mira Sundara Rajan:  So my view, Katie, is that we’d be going too far to say that the court is inventing a new legal theory here, but what they’re doing, and here I think I do agree with you, what they’re doing is cobbling together pieces of existing theories to come up with a new approach.  So in this case the court was drawing upon the legal scholarship to be frank, because that primarily was the source of law that they had.  So they had the moral rights provision.  The government itself had modified that provision, let’s not forget to mention that, while this litigation was ongoing.  So this is—

Katie Wilson-Milne:  Right, we do want to address that.  The government reacted to this case, right, and the law is different now.

Mira Sundara Rajan:  I think so, exactly.  And I think that the court saw that as one more egregious demonstration of the government’s power which was so disproportionately so much greater than the power of the individual suing in this case, the individual artist.  If the government didn’t like what was happening they could change the law.  And so again, the court, I think, was really spurred by that to say, no, there are limits to what the government can do here and we have to have a certain respect for individual rights.

Katie Wilson-Milne:  So what is the state of Indian moral rights now and how did it change?  And obviously the court can’t tell the legislature not to change that statute, so presumably there’s some effect of the legislative shift.

Mira Sundara Rajan:  Yeah, absolutely.  And I think, again, we also need to notice what long periods of time have flowed on here.  So in 1992 we had the interim judgment, in 1994 we had a law reform.  Now, the law reform in 1994 is an interesting one because it basically scaled down the scope of moral rights in the Indian law.  And when I actually did some research on this particular issue to try to find out why, or at least what the government would say about why it had scaled those protections back, and the explanation that I got was that they did this in order to establish Berne conformity.  So they scaled the provisions back so that Indian law would look exactly like the Berne Convention and not like a Berne plus approach.  Now, keeping in mind that the Berne Convention requires member countries to adopt certain minimum standards, but it allows them to go beyond.  And that’s why a country like France can have a greater scope of protection for moral rights than what is an article six bis because that’s envisioned by the Berne framework.  That’s a Berne plus approach.

And that was the approach taken by India as well.  So in 1994, the government said no more, we’re going to reshape our moral rights provision so that it looks exactly like article six bis.  And so they did two things there.  They introduced a global requirement of proof of damage to artist’s reputation, so you could no longer have a moral reference claim without that.  And secondly they imposed time limits on the integrity right, which previously had been available for perpetual protection.

And I think it’s partly in disapproval of the government’s approach there.  Not necessarily disapproving the particular changes, but disapproving the way in which that unfolded.  That it followed the interim judgment, that it appeared to cut down on rights just at the point when the court was saying actually we need to have expansive strong rights in order to protect our cultural creators, our authors and our artists.  I wanted to say a few words about the legal theory in that final judgment as well.  So, because as Steve pointed out, it’s a very large judgment where they bring in something new, and the new thing that they bring in is the idea of Indian adherence to international conventions on cultural property, not only the idea but the fact of that membership in international cultural property conventions.  And that is identified by the court as the context in which Indian copyright law and the moral rights provisions in particular need to be interpreted.

So that’s the legal theory, and the source for that theory is scholarship.  As I had mentioned, I have actually written an article about the case which was then quoted in the judgment.  And one of the things that I did in that article was actually to have this historical look back at the theories underlying moral rights and identifying the cultural heritage stream as being an important one, maybe one that doesn’t receive enough discussion, particularly in common law countries where we’re coming at this with sort of fresh eyes as compared to civilian jurisdictions where we’re looking for reasons why we want to be protecting these things and how we want to be doing that through our legal systems.  And in that context I’ve always thought that cultural heritage really should be emphasized, because it’s one of the important interests involved.  That makes a lot of sense.

So, in my commentary on the Sehgal case, which was shortly after 1992, I actually made this point that there’s a cultural heritage justification here, and a public interest that we need to be looking at in situations like this.  And that was wholeheartedly adopted by the court and then framed in this innovative way, linking the international membership in those international cultural property conventions with the national moral rights legislation in India.  Now, it’s not a total conceptual leap, as I said, because we can remind ourselves that the Berne Convention also is an instrument of public international law, but it is an innovative leap in the sense that that connection is not one that we typically would make as copyright lawyers but the court tries to make a case for that.

Katie Wilson-Milne:  Did the court come to your scholarship at the urging of Sehgal’s lawyers or how did they come to your article?

Mira Sundara Rajan:  Yes, absolutely.  And there’s a very strange maybe serendipitous story behind that, because while the Sehgal litigation was ongoing I had actually started my PhD studies in law at Oxford.  And it so happened that there was a young fellow student in my class from India who had worked with Mr. Pravin Anand’s firm, and Pravin Anand was the lawyer who represented Mr. Sehgal, very eminent IP lawyer from India.  And this fellow student of mine came to understand that I had an interest in moral rights, which basically is the only thing that I went to Oxford knowing that I would want to potentially look at in my PhD research.  And he said to me one day as we were passing in the courtyard of our college, “Mira, you’re interested in moral rights.  I should put you in touch with Mr. Anand.” And that basically is how it all started.  And Mr. Anand then came to know about my work and took that case note as a foundational document for the arguments that he was developing after 1992, obviously with very positive results for Mr. Sehgal.  In fact, if you read the judgment, this emphasis that the court places both on the cultural heritage aspect and the international conventions, and also on the idea of destruction harming the artist by destroying his overall body of work, his creative corpus, all of those ideas were taken directly from the case note.  So that was quite—

Katie Wilson-Milne:  Yeah, that’s terrific.  And we’ll of course link to that.

Steve Schindler:  We’re now going to move to Norway for another controversy involving two site-specific sculptures on Norwegian government buildings created by Pablo Picasso and the Norwegian artist Carl Nesjar.  These two artists collaborated in about 1970 on five murals for a Norwegian government complex known as H-Block and Y-Block.  The Fishermen is a large mural that forms one of the concrete exterior walls of Y-Block, and The Seagull, another work, is a smaller work in the lobby of that building.  And those are really the two works involved in this controversy.  And sadly on July 22, 2011, a right-wing terrorist planted a car bomb that tore through the government quarter killing eight people and damaging the buildings there, including H-Block and Y-Block, both of which have been boarded up since that time.  And even more tragically, the same terrorist went on to murder 69 more, mostly teenagers, at a retreat for Norwegian youth.  So suffice it to say that this was one of the worst, maybe the worst terrorist incident in Norwegian history.  And it really forms the backdrop to this controversy, because several years later in 2014, Norway’s Ministry of Local Government and Modernization decided that the Y-Block building, which sits on top of a tunnel, deemed by them to be susceptible to a terrorist attack, should be torn down.  And this decision to tear down Y-Block, which meant removing particularly The Fishermen, which was really embedded into the outer wall of the Y-Block building.

This decision was seen by many as a cruel irony, given that the Norwegian authorities were actually in the process of designating H-Block and Y-Block as heritage sites at the time of the attack.  And the buildings themselves have significant architectural history, having been designed in the brutalist style by Norwegian architect, Erling Viksjø—I may have that pronunciation wrong—in the late 50s and 1960s. 

To critics of the decision to tear down these buildings and hence remove the murals, and these critics even included the Museum of Modern Art in New York, that to destroy these buildings and move the site-specific art was both in affront to the artists themselves, but also to Norwegian cultural heritage, and actually a capitulation to the terrorist, who did not himself succeed in destroying the buildings.  And all that came to a head, and recently the murals, in fact, have been removed.  But I know Mira, you’ve written about Y-Block, and so perhaps you can give us a little bit more of the legal framework of this dispute and where it stands now.

Mira Sundara Rajan:  Yeah, absolutely.  So the situation of the Y Block was a very harrowing emotional issue, I think, for a lot of people in Norway, just because of that background that you’ve described surrounding the situation, how the damage to those works occurred and so on.  And the way all of this developed was that the Norwegian government had a very strong hand in deciding how they were going to deal with this.  It wasn’t a course of action that was perhaps as democratically open to discussion as a lot of people in Norway would have liked that process to be, given the symbolism of what had happened there and of course of what was now likely to follow.

And so the government actually went ahead and decided that it was going to remove those works, and it awarded, as I understand it, a number of contracts for the rebuilding work that was going to take place, all of which was basically decided in a fairly unilateral manner by the government as far as I am aware.  And in the course of these developments, public opinion gradually became stirred up about this issue, and it all really came to a head last year.  Things were percolating for a long time, but I think last year the government actually finally chose a date to begin taking down these sculptures.  And somewhat ironically, that was the pivotal moment when the public finally realized that actually this was happening, and either they were going to step in now and ask for things to be different or it was going to be too late to do anything.  And so there was a public movement that got generated involving at least tens of thousands of people, if not more, petitioning the government to stop this process and to reevaluate what was going to be done with these works.  And part of the reason for that I think had to do with the nature of the government’s plans.

So, they were going to dismantle the works, which of course in itself presented some questions about safety, but then they were planning to re-install them in other locations that were not as accessible to the public as they were at the moment.  So right now, if you’ve seen pictures of that area, I shouldn’t say now, but before the dismantling occurred, you could basically be walking down the street in the central district of Norway and you would see these sculptures.  And so they were deeply integrated into the everyday life of citizens who were present in the city of Oslo.  And that was the intention of the artists.  So both Picasso and Carl Nesjar had wanted to create public artworks in that very explicit sense and wanted these works to be readily available and accessible just in the course of everyday life

Katie Wilson-Milne:  Mira, at this time, what was the moral rights landscape in Norway and how, if at all, does that legal framework play into this controversy about whether or not these buildings should be removed and whether or not these works could be taken out of their context?

Mira Sundara Rajan:  Norway has a strong tradition of moral rights protection, just like many other civil law countries in continental Europe.  And they had in particular a strong protection for the integrity right of the author.  So there was a clear link here between the interests of the artist who made this important sculpture and the moral rights legislation in Norway.  The moral rights law also goes a step further though.  They have a special provision in Norway, which says that moral rights can be invoked for the protection of a general cultural interest in the country as well.

Katie Wilson-Milne:  Yeah.  I think that’s so—it’s a perfect pairing to talk about this case and Sehgal’s case, because here Norway actually writes into the statute that there’s something else going on here besides the personhood of the artist.  And the court in India obviously found that too, but it didn’t have a statute.  So I’m glad you’ve brought that up.

Steve Schindler:  Right.  And who does the invoking under the statute, and did the artists or their estates take a position here?

Mira Sundara Rajan:  Well, this is exactly where the difficulty arose.  And I think this is a common problem where we have moral rights statutes that try to assert noble principles.  But then when you get down to the details, it’s not exactly clear how those principles are supposed to be upheld in practice.  And so here you have this general provision on cultural heritage, but the only body that’s empowered to act to make use of that provision is actually the government.  So we have a very difficult situation here where the government, ostensibly representing the public interest, are the ones who are responsible for a potential problem with the integrity of the works and yet at the same time it’s the government that must act in order to protect the integrity of those works.  So—

Katie Wilson-Milne:  Meaning the artists can sue to protect the integrity under their personhood rights, but to invoke the part of the statute that speaks to general cultural interests, the standing is only with the government?

Mira Sundara Rajan:  Yes, exactly.  In fact, it’s, I believe the Ministry of Culture.  And you can see they’re two separate sections of the act that are separated by quite a number of other provisions; I think it’s section 5 on the author’s moral right of integrity, section 108 on the general cultural interest provision.

Katie Wilson-Milne:  So what’s tricky here, the Picasso administration ends up not protesting this.  For whatever reason, we could speculate, they have no objection to the removal and relocation of these murals.  But Carl Nesjar’s heirs, he is deceased, but he was alive for much longer than Picasso and I believe was alive during the terrorist attacks and so had a much more intimate relationship with how those works interacted with contemporary Oslo, his heirs did not approve, right?  And they filed a legal claim against the government.  But what happened with that case, Mira?  I mean, it seems to have gone nowhere.

Mira Sundara Rajan:  Yeah, absolutely.  And I think you’ve identified the key issue there, which is the Picasso was much older than Nesjar.  He passed away and was not around to see any of this evolving.  Carl Nesjar on the other hand was there when the attacks happened, and he’s also made comments to the press about what he thinks should be done with the treatment of the works and so on before he passed away as well.  And so I think that right away highlights how the interest of the Picasso administration and Nesjar’s interest might be different, because in one case we’re talking about the artist himself, in another, about an organization that has come to represent the artist’s interests long after the artist’s death.  So, absolutely.  And in terms of what actually developed here, for a long time this public discussion about the issues continued without moral rights being invoked, and finally at a very late stage, late last year, the heirs of Nesjar and in fact of Viksjø as well decided to sue.  Viksjø was the architect who built the building and had a slightly weaker interest but also an interest as well.  At that point a tricky situation arose, because Norwegian law basically provides that any expense that might result from government contracts and so on for the rebuilding would need to be compensated in the case of a lawsuit like this.  And so the heirs requested that the government waive their right to compensation if the final result in the case went in their favor, so went against the artist plaintiffs.

And that’s a standard practice under Norwegian law.  And the government could have agreed to that waiver, but they didn’t, they refused.  And the heirs of Nesjar and Viksjø could not afford to undertake the financial risk associated with that lawsuit, no matter how confident they were, I think, of a victory and basically abandoned the suit.

Katie Wilson-Milne:  I think this raises a bigger issue that, for me, it comes into some tension with the idea that moral rights also exist to serve cultural heritage purposes, which is if moral rights were a public good in the sense of protecting cultural heritage, why would we only let artists sue to enforce them?  It’s an untenable position to make artists, who rarely have the resources and wherewithal to bring these types of lawsuits, the only party functionally, or in reality in most countries, that can litigate these claims and bring them.  There’s almost an incompatibility there with the expectation of the responsibility on who has standing to litigate and then broader societal purposes.

Mira Sundara Rajan:  I think that’s an absolutely brilliant insight.  It’s a problem.  We make artists responsible for taking care of our cultural heritage through the moral rights.  And I suppose this scheme could work if we had good alternate measures for the protection of these cultural interests, and we could rely on moral rights sometimes and on those provisions at other times and they would all work well together.  But in practice I think what ends up happening is that this whole area is under protected, and expecting artists to be able to bring these cases is ridiculous, because 9 times out of 10 they’re not going to have the resources to do so.

Even in the case of the descendants of Carl Nesjar, such a well-known eminent artist in Norway, financial considerations ultimately determined what they could do.  So we need to have different measures in place.  And this section 108 of Norway’s legislation is an interesting example too, because they attempted to do something broader here, recognizing that cultural heritage interests and trying to say, okay, in these cases, we’ve got a larger claim that shouldn’t be just left in the hands of artists.  We need to provide some social support, let the ministry be responsible.  But I think the government is probably not the right either.  We need to have some sort of public interest framework where these interests can be asserted and brought forward.  And we don’t have the answer as of yet.

Katie Wilson-Milne:  I think for moral rights legislation to serve a cultural heritage purpose they also do need to be preemptive.  And in many jurisdictions that’s either legally or functionally not the case.  It’s very difficult to utilize these statutes to prevent any damage before it’s occurred, right?

Mira Sundara Rajan:  Absolutely.

Katie Wilson-Milne:  Because it’s just—it’d be a moot case.  But the whole purpose of cultural heritage is that you do just that, right?  You prevent the destruction before it occurs.  So they’re sort of shadowing each other, these philosophies and legal regimes, but they are also somewhat incompatible in their implementation or awkwardly matched just because of this.

Mira Sundara Rajan:  Absolutely.  And that’s exactly what happened in the Norwegian case, just to clarify that.  So the plaintiffs wanted a preliminary injunction to stop any further action until there was a proper discussion of what was going to happen, how these works were going to be taken down safely, how they were going to be protected, how they were going to be re-installed and where, and were they going to honor the intentions of the artists when they did so, to create public works?  So that was the goal, just to put a stop on everything, save the works where they are for the moment, and then have a discussion about how to go forward.  And at that point, because there’s a financial consequence of a preliminary injunction, the government could have said, okay, let’s have this discussion.  We agree that we’re not going to try to recover those costs from you later if this ultimately ends up going in our favor.  And instead of doing so they basically put an end to the process by saying, no, we’re not going to be able to waive the costs issue.  And what’s happened now in practice is of course that the lawsuit has continued until last week actually, but the government went ahead and dismantled the artworks.

Now, the plaintiffs have settled the lawsuit in exchange for an agreement that they’ll be included in discussions on where the works will be placed in the future.  That’s all that they’ve obtained.  But their goal, which was to avoid this and have a discussion about it before anything happened, is completely done.  That’s a failure.

Katie Wilson-Milne:  Oh, that’s so interesting.  Thank you for clarifying that.  So it was the preliminary injunction action that the plaintiffs withdrew from due to costs, but there was a substantive action that moved forward.

Mira Sundara Rajan:  Exactly.  Which now has been concluded as well, because the objectives of the plaintiffs are now moot.

Steve Schindler:  The parallels, and our listeners will be familiar with this, between what happened at the 5Pointz side here, the plaintiffs went in for a preliminary injunction precisely to maintain the status quo while there was some resolution.  And of course the district court judge in that case, even though the statute says that you can go to court to prevent the destruction of works of recognized stature, just couldn’t do it in the face of a landlord who wanted to tear down and develop his building.  So the judge said, well, there’ll be time to award you damages if it turns out that these are works of recognized stature.  And that’s what happened.  But of course the statute is supposed to prevent the destruction of the works of art and not to have proceedings for damages.  And that there seemed to be some parallels with what happened in Norway.  And it strikes me that this is always the tension when you’re dealing with public spaces or buildings and how they get managed and developed and then you have site-specific works that are attached to those buildings, and it’s very difficult to try to navigate that sometimes.

Katie Wilson-Milne:  Yeah, and of course in the Norway case, the artworks were not destroyed.  I mean, the intent was never to destroy them.  They were not destroyed.  So it’s little bit of a trickier question if you step back, and I think for me this is one of the big questions is, is relocating a work a moral rights violation?  Do we rationally put a limit on what artists can expect, in terms of the control of their work forever, if that work is in a public space?  And relocation might be, for some people, might be the line at which we stop protecting the artist’s opinion about what should happen for the work.  Clearly not everyone.  I think it’s a harder question is if the work itself is not destroyed but its context is altered, should that be a moral rights violation?  And as a society, do we want to imbue artists with that kind of power over the public space?  Does the artist get to pick their context as a legal matter?  For me, that’s a hard question to think through and imagine the consequences of giving artists that veto right in public space.

Mira Sundara Rajan:  I think that’s a very deep question, Katie, that you raise, and I’ll just make a little comment about that, because I thought I knew the answer to that question, that ultimately there are going to be limits on the relevance of context.  And my thinking about the Norwegian case was about preserving the physical integrity of the works.  I thought of that as being the primary interest.  And I thought that one of the concerns raised about the government’s plan was whether the works could be dismantled without further breaking them.  And so my focus was on that issue, that even the process of dismantling could cause further damage and so had to be approached with proper caution.  And that’s definitely one of the things that the plaintiffs were concerned about in this case.  But my understanding of this whole issue was completely blown apart by my interactions with a gentleman named Jean-Louis Andral, who is the Director of the Picasso Museum in Antibes in the South of France, where Picasso spent a lot of time.  And Mr. Andral gently explained to me that my understanding was very much infused with a property way of thinking.  That I was looking at these works of art as physical property, but in fact that wasn’t primarily what they were, that there was some immaterial essence involved here that actually represented what those works of art were in a much more accurate way.  And it’s in that sense that the context becomes important.  It’s not just about physical preservation, this isn’t a piece of furniture.  There’s something spiritual there that needs to be preserved about the intention of the artist and what it is that they intend to give to society and also what the public is gaining from those works.  And that’s maybe one area where I differ a little bit from your characterization there, Katie, because I’m not sure that what we’re doing when we give artists precedence in these situations of public art is to prioritize the interests of artists only, I think we’re also prioritizing the interest of the public.

And it’s so happens that the interest of the artist and that of the public align in that particular case, for example, in 5Pointz, more closely than the interest of the property developer and the public.  But I do think that there’s a broader social interest that’s involved, and it’s going to be very difficult for us to articulate that social interest much less to protect it through the law, because that’s just not the kind of thing that modern legal systems or maybe even modern societies prioritize.

Katie Wilson-Milne:  Yeah, and the moral rights legislation, as we’ve been discussing, doesn’t encompass that, and it doesn’t—it’s not big enough in an obvious way, in most cases to hold the view that there’s something more going on here than the interests of the artists.  And we’re seeing these examples where there’s a real push or a pull of moral rights in that direction.  But we’re, in many cases, still stuck with these statutes that don’t obviously link the artist’s personal dignity interests with the interests of the public, which of course could be disputed.  You know, I mean, I think the Norwegian government could fairly say, and they have said, it’s in the interest of the public that we redesign this plaza and we create a safer building environment.  And that has to take precedence if you’re looking at whether this artwork can move or what we can do to develop our city.  I agree with you that in reality, of course, those interests are aligned.  I just, I wonder at the end of the day if we give artists the responsibility and the rights to veto public development, it’s kind of an inherently conservative position to not accept that of course cities will change, of course architecture will change.  And perhaps that should have been expected from the beginning in a site specific work, that over time things change, right?  And that that’s not so shocking.

Mira Sundara Rajan:  Absolutely.  I mean, there are a lot of points to think about there.  I guess all we can really say about the moral rights is that it’s a very incomplete framework to deal with a lot of really complex and important issues, issues of individual rights, the public interest, cultural preservation, all of these social needs and human needs are implicated in this area of the law, but we don’t really have a comprehensive way to address them.  And law being what it is, law changes very slowly and it’s far behind social currents.  That’s something that we experience as IP lawyers every day.  So I would say that the law in this area is really in its infancy, and we’ll have to see how successful we are at shaping it going forward.

Katie Wilson-Milne:  Thank you so much, Mira.

Steve Schindler:  Thank you, Mira.  And that’s it for today’s podcast.  Please subscribe to us wherever you get your podcasts and send us feedback at podcast@schlaw.com.  And if you like what you hear, give us a 5-star rating.  We are also featuring the original music of Chris Thompson, and finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.

Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne.

Steve Schindler:  And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  The information provided in this podcast is not intended to be a source of legal advice.  You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.


Music by Chris Thompson.  Produced by Jackie Santos.