06 April 2022
Artworks such as sculptures, installations and murals are often commissioned from artists by developers to give character to a new property development. However, there may come a time when the site owner or a developer wishes to modify or conduct redevelopment works on the site. Such modifications or redevelopment may mean that the context of the artwork is changed, or that the artwork needs to be removed, modified or destroyed.
As part of the planning to modify or redevelop a site, it is important that the moral rights of the relevant artist are carefully considered and that a plan is put in place to ensure that those moral rights are not infringed.
Unlike other forms of intellectual property (including copyright), moral rights cannot be assigned. This means that even where a site owner or developer owns an artwork located on a site (and has been assigned the copyright in the artwork by the artist), the moral rights continue to be owned by the original artist.
This article looks at the moral rights attached to artworks located on a site, and provides some practical guidance to ensure that any modification or redevelopment works that may impact an artwork do not infringe the artist’s moral rights.
Anyone who creates an artistic work owns moral rights in that work from when it is created. There are three types of moral rights that are relevant to an artist:
If a court finds that an artist’s moral rights have been infringed, the court can order:
When commissioning an artwork for a particular building site, it is important to prepare a written contract that explicitly deals with the physical ownership of the artwork, the ownership of the copyright in the artwork, and the artist’s moral rights.
In the case of moral rights, developers frequently request that the artist consent to actions that would, in the absence of the artist’s consent, amount to an infringement of moral rights. If the artist agrees, this should be appropriately documented in the contract. The contract should make it clear how the artwork can be used by the owner or the developer of the site in circumstances that may otherwise infringe the artist’s moral rights.
For instance, can the artwork be included in all marketing and publicity materials for the site without the prior consent of the artist? Must the artist be credited as the author of the work every time an image of the work is used? If the contract does not deal with these things, the legal position is that the artist will likely be required to provide consent whenever an image of the work is used publicly, and it will be necessary to ensure that the artist is properly identified as the author of the artwork every time images of the artwork are used.
The contract should also set out a process for the parties to follow if the building owner or a purchaser of the site wishes to modify the site in any way, or to demolish, modify or remove the artwork.
A written contract with the artist is also important because prior to acquiring a building site that has an artwork on it, any prospective purchaser conducting proper due diligence will likely wish to view a contract that clearly sets out who has title to the artwork, whether the artist’s moral rights have been waived and, if so, to what extent.
If it appears that a modification or redevelopment of a site may result in the removal, destruction or modification of an artwork on a site, there are some practical steps that should be taken in the early planning phases to ensure that the artist does not have legal recourse for the infringement of their moral rights.
As a starting point, all relevant contracts should be reviewed including, in particular, any commissioning agreement with the artist to ascertain whether:
If the artist has consented to the removal, modification or destruction of the artwork, the artwork may be removed without infringement of the artist’s right of integrity. However, there may be conditions attached to that consent and a careful review should be conducted. Alternatively, if there is a prescribed process for the removal, modification or destruction of the artwork, that process must be followed.
Sometimes there is no relevant contract or the relevant contract does not adequately deal with the artist’s moral rights.
In those circumstances, it will be necessary to look to the provisions of the Copyright Act 1968 (Cth). The Copyright Act allows certain acts which would otherwise constitute an infringement of the moral right of integrity if specific notification requirements are followed.
Where an artistic work is affixed to or forms part of a building, the building owner is required to make reasonable inquiries to discover the identity and location of the artist. If they can locate the artist, they must then give the artist three weeks in which the artist can make a record of the work and consult in good faith (with the building owner) about the removal or relocation of the work. If the building owner cannot locate the artist, then they can justify the removal, relocation or destruction of the work.
Over the last decade, courts have demonstrated a willingness to recognise claims of infringement of moral rights and enforce remedies (see for instance Perez v Fernandez  FMCA 2 and Corby v Allen & Unwin  FCA 370). Building owners and developers should pay particular attention to how they treat artworks on building sites to ensure that they not only respect any contributing artists, but also to safeguard against court action and associated negative publicity.
If you have any questions, please contact us or send us your enquiry here.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.