Monday, June 17, 2013

UPDATE: Test case needed to establish standard applicable to "alterations" of artistic works under the CDPA

LONDON. In my last post I discussed how a false attribution claim under section 84(6) of the CDPA might be used by an artist in the UK to effectively disown an artwork in much the same way as Cady Noland recently did by exercising her moral rights under VARA.
One of the issues raised by plaintiff's counsel in the Jancou-Noland dispute was whether it is appropriate for federal legislation to give artists discretion to determine what constitutes a "distortion, mutilation, or other modification" of their work given the precarious situation in which art market participants are placed as a result. Having made the link between the right of attribution relied on by Noland and section 84(6) of the CDPA, it seemed pertinent to go on to discuss the standard a court would apply to determine whether an artistic work has been "altered" for purposes of a false attribution claim under subsection six. My personal view was that the standard would be objective (see here) but further research was required given the CDPA's vagueness in this regard. I have now conducted such research as well as consulted with the Institute of Art and Law and it appears that, absent an amendment to the CDPA, a test case is needed to ascertain the standard applicable (the repercussions for consignments/ownership of art being far greater of course were the standard to be subjective). The CDPA in its protection of moral rights needs to strike a balance between authorship rights of creators of artistic works and personal property rights and in my opinion, an objective standard would help to achieve such balance as there are no other safeguards in this specific part of the act to prevent potential abuse (unlike in section 80 where you have the (objective) "reputational harm" safeguard).
The act of disowning art might seem like a strictly US phenomenon (Richard Prince is another artist known to have repudiated his earlier work) but it's worth bearing in mind that moral rights were only recently introduced in the UK and artists may pursue these personal and non-transferable rights far more vigorously in the not-so-distant future. 

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