A story about an artist, his rights, their protection and more

(from the lawyer’s practice)

by Ivana Murdjeva

Are you familiar with the meaning of case law? It is a sufficient number of court rulings, issued as a resolution of identical cases, which provide insight into the systematic interpretation and application of legal norms by the court when ruling in favor of, or, respectively, in denial of a certain case defended by the parties to the lawsuit. Case law is important because it provides both the court and the parties with arguments. Moreover, upon closer review and analysis, case law can give information on public attitudes, the intentions of the lawmaker, and the will of the court to correct the conduct of the parties by accepting or rejecting arguments from the cases being defended.

I begin with this opening, somewhat sideways of the topic, in order to bring attention to the importance of protecting the rights of art creators; not only in terms of the private interest, but also in terms of the impact this would have on the overall improvement of the environment, and our collective life. Let me tell you about a specific case where the parties' details are spared, but the content is related in specifics.

The story
Immediately after the democratic changes in the country, a municipal educational institution, probably inspired by the winds of change, but still under the control of a dogmatic time in which education was above all discipline and respect, commissioned a famous Bulgarian artist to produce an original design for a mural. The project was to be executed in a space designated and managed by the educational institution and was to include images suitable for the students’ patriotic and highly aesthetic education. A contract was signed for the commissioning and implementation in accordance with the legislation in force at the time. Precisely what clauses the contract contained could not be determined, since 27 years later none of the parties concerned had a copy of it retained. The project was executed, as the legal language goes, in accordance with the best practices within the field of the work awarded. As a result, the educational institution obtained a high-value work of authorship, and took the obligation to protect it, keep it safe from violations of its integrity or any changes being made to it, always provide the author with access to the work, and always cite the author's name when reproducing the works. It is logical to ask, then, how the extent of the parties' rights and obligations in relation to the mural created can be ascertained if the contract between them was never found.

Each one of the obligations, referred to herein, and its corresponding right arise by virtue of law. The new and currently effective Copyright and Related Rights Act was adopted in 1993, repealing the Copyright Act of 1951. In both of these Acts, copyright is protected to the full extent, albeit with different wording and a different extent of participation of the State. This means that, irrespective of the date on which the contract was signed, it could not have contained any provisions contrary to the law. In other words, the author, by creating their work, enjoyed full protection, and all they needed to confirm this were the provisions of the law in force.

But let us go back to our story
The artist fulfilled the assignment, the mural was completed. The artist did not sign his work. Why? Was it a matter of personal conviction or confidence that his name and work could not become the subject of misuse? He listed the work in his artistic biography and because of that the story is continued.

The story is continued
27 years later, on the occasion of his retrospective exhibition, the artist returned to the educational institution to document his work. I am at a loss for the right word here: was it bewilderment, astonishment, or horror, with which the artist found his own work reworked, most likely "improved" to meet the norms of the time. The central image of the composition was diligently erased and redrawn in a style incompatible with the overall image, way more mediocre in quality, in disregard of the professional requirements for synthesis with the space and the composition of original design. The integrity of the work was severely compromised, and the work had lost its appearance and authenticity. Nothing suggested the intervention in the work had been necessitated by urgent measures taken to save the mural. There were no signs of damage to the rest of the image. Certainly, the artist had not been notified of this intervention and his consent had not been obtained. The management of the educational institution, changed many times over during the years, was quite surprised to find out that the painting in the corridor actually had an author, and one in flesh and blood too, and, moreover, that that same author was now demanding the restoration of the mural and the payment of fair compensation for damage.

An argument arose between the parties
Firstly, the educational institution claimed that the artist was an impostor because the work was not signed and there was no evidence confirming his authorship. This argument was easily refuted by the artist who provided documentation indisputably legitimating him as the creator of the work. The educational institution's next argument was that as long as there was no contract, there was no commitment.  That is to say, unless the artist was able to prove he had been commissioned the work, he wasn’t entitled to any claims, and even his authorship rights were somehow precluded, so to speak. I have already put forth arguments here supporting the prevalence of law protecting the artist and his rights over the provisions of a contract. While on the subject, and at the heart of this story, let me say that contracts do matter in protecting rights, and it is important to be mindful of the scope of obligations assumed by the parties when entering into them. Contracts, of course, may not be contradictory to the law, however it is good to know that, more often than not, the rights of the parties arise and are protected by virtue of contracts made between them. Naturally, keeping and safeguarding contracts is highly recommended.

But let us continue our story. The argument between the parties intensified and no agreement could be reached. What the artist contended for, was restoration of the authentic appearance of the mural, with the associated costs being covered by the educational institution, and payment of compensation for the non-material damage caused to the artist's personal dignity. What the educational institution contended for, was nothing in particular, its representatives were completely at a loss as to what was wrong with having painted on somebody else's work, occasionally insinuating that there was no evidence they ever commissioned the painting in the corridor, thus implying that it was an illegally created graffiti rather than an author's mural, they did not have any commitment to it and were free to make improvements to it such that they deemed fit. Here I should point out, of course, that defending rights always goes along with a significant level of stress and requires considerable effort on the part of the authors. You do understand that proving obvious facts concerning authorship is often offensive to an artist's professional status. The conduct of the other party is offensive too, as not only does it have no respect for the author's work, but it also has no regard for the value of the art image as a whole. Whether it is an artist's design, stucco art, a print, or something else in colour, is irrelevant and does not form a specific attitude.

Our story is obviously heading towards the court
The parties will unite efforts to create legal practice. The court will judge on the validity of the arguments and rule on an equitable basis and according to law. The case shall end with a settlement between the parties. During the course of the trial, the educational institution offered to pay the artist the full compensation he requested and undertake the restoration of the mural. The artist was protected and received justice. What did the educational institution learn? It is difficult to say. Will it happen again? It is difficult to say. Is this going to lead to an overall improvement in environment and attitude? It is difficult to say. But it is a good start in pursuing that course.

Why am I telling all this?

Why is this case important?

What does it show and how can it be useful?
I am telling this story because it is one of the few that ended in settlement. There are not many cases where artists are insistent and persistent in their desire to defend their rights, even more so when it comes to rights in artistic (visual) works. There is a much more abundant practice relating to the protection of the rights of performing artists, music producers, authors of music, directors, screenwriters and cinematographers. Unfortunately, visual artists are too timid and insecure to be able to achieve success in defending their case. There is an explanation for this, of course, which has to do with the extensive subject of the overload of visual means of expression in the environment and the increasingly poorer protection of images from misuse and unauthorised use. In modern standards, the image has acquired the status of common accessibility. The web offers an unlimited resource of databases that interpret and offer for free use a massive number of images. Visual artists are required to redouble their efforts in the strive to protect their work and authorship. Often this is economically unjustified, involves a lot of additional activities and, above all, requires a specific competence, which authors unfortunately do not possess.

Why is the story I told important?
Because it is not unique, but is one of the few that received publicity. And that is not all. This story shows the state of the environment. In a normal situation, where artistic work is regarded with respect, including by judicial practice, this case would not have ended up in court. The educational institution would have been aware from the start that it had committed a violation and of the consequences of this violation. The artist would have claimed his rights in the light of the public respect for his work and would not have faced the dilemma about whether and to what extent it was "worth bothering with". Finally, I will attempt to build on Mario Vargas Llosa’s words, and by making an effort to understand and interpret them, to show you the following paradox.

Why is visual culture important and how does it relate to laws and their enforcement?
A phenomenon of our modernity that greatly undermines our well-being as a society is the disregard for laws. Mario Vargas Llosa argues that this is a consequence of the rules of the civilization of the spectacle. Somewhat speculatively, I argue that the visual is an essential element of thе civilization of the spectacle. Disregard for the law finds an expression in certain civic behaviours, mostly indifference and distrust. Citizens tend to ignore the law, violate it, and not all that rarely to express their arrogance and contempt for general norms. For some, laws are abhorrent, an expression of power and domination by the powerful of the day. This disgust, disregard, distrust of the laws is often expressed in the abuse or "piracy" of artistic works in the broad sense. These objects seem to be the least protected, and the pervasive message of the visual medium is that anything is possible, accessible and permitted for the brave. The abuse of images is ubiquitous and widely practiced. I deliberately use the word 'abuse' rather than 'theft', as I consider the former to be stronger and more comprehensively descriptive of the condition in which an artist is placed in a situation where their work is abused, not simply stolen from. 

It is paradoxical, and yet a fact
The development of visual culture could bring about improvement of the legislative environment. Have artists thought about that?

Now, please allow me to use a long quote from my supporter in the argument:
"Indifference to the law inevitably leads us to the spiritual dimensions of social life. Heavily compromised politics is undoubtedly the result of the collapse of spirituality, because in the past ages, in the Western world at least, it was spirituality that restrained the powerful of the day as they broke norms and acted high-handedly. When this spiritual protection over the collective life was lost, all the demons that had led to the degeneration of public life became restive in society, convinced the citizens that nothing noble and humane could be found in politics, and reduced it to a deeply infamous occupation." [1] 

My point here is that copyright protection is a matter of responsibility to our collective life. Indeed, the process involves unrewarded personal effort, and often loss, however, the overall result is worth the effort. I hope now you understand why case law is important, why I began and end with it. Often texts like this one focus on the general framework of protection and provide information about authors’ rights and the possibilities for their realization. In my view, the problem should be examined in terms of its collective significance and, from these conclusions, encouragement and increased activity by authors in defending their violated rights should be sought. The laws are clear, what we lack is case law. Have artists thought about that?

A few more arguments
The case related above, besides bringing the focus on the general framework of protection, also brings up the question about the presence of art in a public environment. Question related to the positive and, respectively, negative reactions of viewers, brought about by co-experiencing the same space with the artwork, would naturally make sense. That the work may fail to please the audience, cause public outrage, or trigger negative reactions that can give rise to demands for a change in its content or its removal altogether, is entirely possible. How is responsibility shared in this case and what are the remedies available to the author?

To begin with, the placement of an artwork in a public setting does not and should not ensue from a single administrative or other authority’s decision. Proper early preparation usually requires an analysis of the potential impact, or a properly constructed idea of how public attitudes will meet and react to an intervention in the public environment. It is the responsibility of the Contracting Authority to carry out this preliminary study, and to communicate positive expectations and attitude in advance, if you will. When the artist implements the intervention in the public environment, the owner of the space has the obligation, if they consent to the intervention, to ensure the proper and reliable preservation of the artwork. In other words, if the owner of the space permits - by issuing an act such as an administrative decision, contract, an award of a contract as a result of a bid, etc. - the placement of an artwork in the public environment, they have the responsibility to preserve that artwork.

Any infringement of objects protected by copyright is subject to the full scope of legal protection provided to the author and their rights, regardless of the reason for the infringement. Therefore, allegations that artworks have been infringed as a result of persistent and negative public attitudes is irrelevant and ill qualified to justify any actions committed by the Contracting Authority or the owner of the space without the author’s knowledge and consent. In the foregoing case, therefore, the public educational institution cannot stand its case claiming negative public assessment, an altered viewpoint of the images that necessitated external intervention without the author's consent. We often misjudge the importance of copyright protection and the importance of public attitudes, giving prevalence to the latter. This is very wrong. Public attitudes, as well as the perceptivity level and culture of the environment are certainly quite important, however, it is not the author’s responsibility to monitor them. As I have already mentioned, his contribution in changing attitudes works in a different way, including through an active protection of the rights.

Last but not least
A key element in the protection of rights is providing sufficient evidence and arguments in defense of the author. Among the most significant proofs is the documentation available to the author, especially that concerning the creation and objectification of the object of protection. It has become obvious so far, that documentation is often missing, and not only such related to the commissioning of the work (contracts, decisions, awarding documents), but also documentation related to the creation of the artwork, as well as the artwork itself.

Fundamental here is the question of photographically documenting an author's objects. Does the photographic documentation of the author’s (visual) objects constitute an independent object of copyright, what are the rights of the artists creating artwork in comparison with the rights of the creators and owners of photographic images?

Photographic works and works created in a manner similar to photography are beyond any doubt an independent object of protection and their authors enjoy the full scope of protection. It is up to the authors to decide under what conditions to make the works available, reproduce and circulate them. The name of the author of the photographic image must be visible on the published or reproduced copies. An author whose work has been photographed is only entitled to claim rights of the photographic work if they have previously negotiated its creation, i.e. they have agreed on the relationships involved during, and in relation to, the use of the photographic image. The arrangement for the use of the photographic image (such as a contract between the parties) does not change the scope of protection of the author of the photographic work, but enables the author of the photographed work to use, make available for use, circulate and reproduce the photographic work. Where the artist of an artwork is not in possession of the proper documentation, the use of someone else's photographic documentation is essential.

Unfortunately, prior settlement of the contractual relationships relating to its use is rarely seen. More often, cases arise in connection with the subsequent settlement of the relationships, which is more complicated. However, it must be unconditionally stated here that without prior agreement the claim of an artist, having created an artwork, to the photographic image of their work is ill grounded.

The law does not provide for copyright categorization in terms of stronger and weaker protection.  The creating and maintaining of an archive of artistic works is of primary importance to the effective and proper protection of authors' rights. Unfortunately, archiving and creating a reliable base of information is a problem persistently neglected by authors that often becomes an issue in a subsequent case of protection.

The foregoing is intended to show that copyright protection in the field of art is a complex act. It concerns both the collective and the individual responsibility of the artists. The protection of rights, in addition to being relevant to personal cases, is essential to the general improvement of the regulatory, and maybe even the artistic, environment.

[1] Vargas Llosa, M. Civilization of the Spectacle, Colibri Publishers for the Bulgarian edition, 2013

This article is part of a project included the Legacy programme of Plovdiv 2019 Foundation.

Ivana Murdjeva, 2021