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17 Apr
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Copyrights and Moral Rights: Fearless Girl v. Charging Bull

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The Bull is charging, charging angrily and aggressively. The natural response of an ordinary, prudent person would be to take flight. But, that doesn’t hold true for the Fearless Girl, who stands up to the bull with no sign of fright or alarm on her face. The Fearless Girl is in fact a representation of women empowerment and strength, and received the anticipated response when it was placed before the Charging Bull on Wall Street.

To the sculptor, Kristen Visbal’s delight, the soft featured Fearless Girl received overwhelming response, and women groups requested the New York Mayor to extend its stay beyond the women’s day. The Mayor agreed, and decided to keep the Fearless Girl opposite the Charging Bull until February, 2018. This decision however did not please the author of the Charging Bull sculpture, Arturo Di Modica, who felt that the Fearless Girl’s positioning depraves his work, and derogates his honour and reputation. He vowed to take legal action against the Mayor and the sponsors on copyright and trade mark grounds, among others, if the Fearless Girl is not removed. The Mayor denied, and set off a debate about the legal rights of Di Modica.

Moral Rights under the Copyright Law

Moral Rights were at the forefront of many discussions and articles with respect to Di Modica’s legal rights.  The Berne Convention for the Protection of Literary and Artistic Works, which harmonizes national copyright laws to some extent, contains provisions relating to Moral Rights (Article 6bis), but the law on moral rights is not the same in all countries. While countries like France grant very strong moral right protection, countries like USA grant limited moral rights cover. Countries like India and UK fall somewhere between the two in the strength of their moral right regimes.

Moral Rights in India

Moral Rights are provided under Section 57 of the Copyright Act in India. The Section reads as follows:

“57. Author’s special right.

(1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right –

(a) To claim authorship of the work; and
(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before  the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.

Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section
(1) of section 52 applies.

Explanation.—Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.]

(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author.”

Independent of the economic rights of the author, Section 57 of the Copyright Act provides two moral rights:

a. Paternity Right: The right to be attributed as an author of the work; and
b. Integrity Right: The Right against distortion, mutilation, modification and any other act that is prejudicial to the author’s honour or reputation.

Some countries include the right of publication and retraction among the moral rights of authors, but the Indian copyright law does not recognize the said rights.

Moral rights are valid until the validity of the copyright term in India. The section is silent about whether an author can waive his moral rights, and many entertainment contracts include moral right waivers generally, or under certain circumstances such as digital/online distribution, live performances, etc. In other words, authors of entertainment content such as artists, lyricists, composers and writers waive their moral rights, and agree for removal of attribution and modification of their works. Questions with respect to impact on honour and reputation can be very subjective, and most entertainment contracts   exclude several activities with respect to works from the scope of moral rights enforcement.

As per the explanation in the Section, an author does not have the right of display or the way in which her work must be displayed. Simply put, whether a work must be displayed to the public, and how it must be displayed, are outside the purview of author’s special rights.

Select Moral Rights Case Law

In the Amarnath Case (2005), the Delhi High Court decided on infringement of moral rights with respect to a bronze sculpture. In 1957, Government of India commissioned a sculpture from Amarnath Sehgal, a renowned sculptor, for Vigyan Bhavan. Amarnath created a bronze mural sculpture, which was placed on a wall in the lobby of the Bhavan. The sculpture spanned a height of forty feet and a length of one hundred and forty feet. In 1979, the Government removed the mural, and placed it in a store room without informing Amarnath.

Aggrieved, Amarnath approached the Delhi High Court alleging that the Government’s act infringes his moral rights. After reviewing the facts of the case, the Court came to the conclusion that Amarnath’s moral rights were violated, and ordered the Government to hand over the sculpture languishing in the warehouse to the sculptor. The Court also granted damages of five lakh rupees to Amarnath.

The Court reviewed the state of the sculpture before arriving at its conclusion. Parts of the bronze mural were missing, and the sculpture was languishing in the warehouse without any maintenance, or plan for its re-installation. The said state, as per the Court, amounted to destruction and mutilation of the work. The Court stated that the removal of the sculpture from the body of work of the sculptor prejudiced the author’s honour and reputation, and caused detriment to the integrity of his work. As per the Court, the Government’s act also detrimentally impacted the integrity of India’s cultural heritage.

Relevant paragraphs from the judgment with respect to Moral Rights read as follows:

“24. In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights.

25. When an author creates a work of art or a literary work, it is possible to conceive of many rights which may flow. The first and foremost right which comes to one’s mind is the ”Paternity Right” in the work, i.e. the right to have his name on the work, It may also be called the ‘identification right’ or ‘attribution right’. The second right which one
thinks of is the right to disseminate his work i.e. the ‘divulgation or dissemination right’. It would embrace the economic right to sell the work for valuable consideration.

Linked to the paternity right, a third right, being the right to maintain purity in the work can be thought of. There can be no purity without integrity. It may be a matter of opinion, but certainly, treatment of a work which is derogatory to the reputation of the author, or in some way degrades the work as conceived by the author can be objected to by the author. This would be the moral right of ”integrity”. Lastly, one can conceive of a right to withdraw from publication ones work, if author feels that due to passage of time and changed opinion it is advisable to withdraw the work. This would be the authors right to ”retraction”.

26. Except for the ‘divulgation or dissemination right’ which perhaps is guided by commercial considerations, the other three rights originate from the fact that the creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work. As I  understand, this is the source of the last three rights noted in para 25 above and, Therefore, could be captioned under the banner ”The Authors Moral Rights”.


28. Should right to assert authorship in a work, include a right to object to distortion, mutilation or modification in a work? Why not, if it is prejudicial to the honour or reputation of the author. The contours, the hue and the colours of the original work, if tinkered, may distort the ethos of the work. Distorted and displayed, the viewer may
form a poor impression of the author. A good name is worth more than good riches.

(Shakespeare’s Othello, Act-II, Scene III, pp.167):- Good name in man and woman, dear my Lord
Is the immediate jewel of their souls;
Who steals my purse, steals trash;
Its something nothing;
T’ was mine, t’is, and has been slave to thousands;
But he that filches from me my good name, Robs me of that which not
enriches him And makes me poor indeed.


56. There would Therefore be urgent need to interpret Section 57 of the Copyright Act,
1957 in its wider amplitude to include destruction of a work of art, being the extreme
form of mutilation, since by reducing the volume of the authors creative corpus, it
affects his reputation prejudicially as being actionable under said section. Further, in
relation to the work of an author, subject to the work attaining the status of a modern
national treasure, the right would include an action to protect the integrity of the work
in relation to the cultural heritage of the nation.”

In 2010, the Delhi High Court clarified in the Pee Pee Publishers case that the Indian Copyright Law provides only two moral rights, the right of paternity and integrity, and does not recognize the right of retraction and the right of dissemination. In another case decided by the Delhi High Court in 2015, the Sholay Case, the Court recognized moral rights in characters, music, lyrics and dialogues, and held that their distortion and mutilation amounts to violation of moral rights of their respective authors. In another case involving  the same film “Sholay,’ the Bombay High Court decided in 2013 that moral rights vest with the producer of the film, and not its director. The Court in the case stated that Ramesh Sippy does not hold either copyrights or moral rights in the film because the director of a film is not its author.

Di Modica’s Moral Rights Under Indian Copyright Law

Di Modica is the author of the Charging Bull, and   he will therefore  hold copyrights and moral rights under the Indian Copyright Act. The only question  will therefore be whether Fearless Girl facing the Charging Bull amounts to distortion, mutilation, modification, or any other act that prejudices Di Modica’s honour or reputation. Moral right infringement analysis has two basic prongs, assessment of whether the work has been distorted, mutilated, modified, or acted upon in any manner, and whether such an act  is prejudicial to the author’s honour  or reputation.

The distortion, mutilation, modification or any other act with respect to the work may either be tangible or intangible. In the Amarnath’s case, there was a tangible distortion and mutilation of the bronze mural sculpture. It was  removed from display and placed in a warehouse, where it was not cared for. Furthermore, portions of the sculpture were missing, making it difficult for its  complete revival. By its tangible actions, the Government contributed to the destruction of the sculpture.

Integrity of a work may also be destroyed by intangible means. For example, placing a criminal’s painting next to a  painting of Buddha does not result in any tangible damage to Buddha’s painting, but causes intangible destruction by diminishing the value of the painting. The intangible destruction of a work can be the result of a wide array of actions ranging from  adding extrinsic elements to the work’s environment to conducting activities around the work that impact the message conveyed by it.

Based on the facts, no tangible damage has been done to Di Modica’s Charging Bull as the bull has not been touched or neglected in any manner. The bronze sculpture  continues to  be the subject of due physical care, and occupies the place it did earlier. However, a new element in the form of Fearless Girl has been introduced into the Bull’s surroundings, raising questions of intangible damage. When seen through the eyes of the author, the introduction of the new element definitely distorts and modifies the Charging Bull in an intangible manner. It reduces the aggression of the bull, and  dilutes  its value by weakening its message.

The said intangible distortion of the sculpture and its message can prejudice Modica’s honour and reputation. With the introduction of the Fearless Girl, the Charging Bull, which connotes the message of  strength and power of  the people  assumes the connotation of male domination and chauvinism. The Fearless Girl  transforms the positive, inspirational  Charging Bull into a negative, oppressive  one.

Fearless Girl represents women strength and empowerment, but it does so by degrading the Bull. Historically, women were suppressed  by men, and were not given equal opportunities. When seen through the lens of  justice, human rights or history, the Fearless Girl’s placement before the Charging Bull is absolutely justified, but can its placement  be justified when seen from Di Modica’s perspective? One can argue that social interest and public interest must make way to Di Modica’s moral rights, but is it fair to  make an inspirational or positive statement about women by  distorting and damaging an author’s work and degrading his reputation?

Whenever they had to decide between public interest and individual interest, most Indian Courts have  leaned in favour of public interest. This is especially pertinent in intellectual property cases. When economic rights clash with moral rights, most Courts  will likely lean towards moral rights. When moral rights clash with public interest, Courts will likely lean in favour of public interest.

If the facts were tested before an Indian Court today, Di Modica may not  walk out of the Court smiling.

References

  • Amar Nath Sehgal Vs. Union of India (UOI) and Anr., MANU/DE/0216/2005
  • Pee Pee Publishers and Distributors (P) Ltd. Vs. Dr. Neena Khanna and Anr., MANU/DE/3916/2010
  • Sholay Media and Entertainment Pvt. Ltd. and Ors. Vs. Parag Sanghavi and Ors., MANU/DE/2486/2015.
  • Ramesh Sippy Vs. Shaan Ranjeet Uttamsingh and others., MANU/MH/0290/2013.

Image Source / attribution here, Creative commons license: CC BY 2.0

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