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Eric Swetsky's legal column published in Marketing Magazine, April 1999
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Moral Right or Moral Slight? Understanding when modified artwork can get you in legal hot water
What happened to the Glider Advertising Agency in England could happen to any Canadian advertising agency. These are the facts. Glider was hired by the Plymouth City Council to produce two leaflets and a brochure that promoted the area's second world war heritage. The work was done, the client was happy and Glider was paid. When the initial print runs were exhausted, the Council hired another advertising agency to reproduce the documents.
The only work that the new agency contributed was some modifications to the original artwork -- some background deletions were made such as the removal of a weathervane, some line renderings were altered, some colour renderings were redone, and some shadow treatments were changed.
Glider was upset, and sued. The allegation made in court that is most interesting for our purposes is the suggestion that by making the changes to its original artwork, the new agency infringed the moral rights held by Glider in their work.
Moral rights form part of Canada's Copyright Act, and are of two types. The first is the "moral right of paternity," that is, the right of a creator to be associated with his or her work, or the right to remain anonymous. The second right is the "moral right of integrity," which is designed to prevent a creator's work from being distorted, mutilated or modified if the effect is to prejudice the creator's honour or reputation.
The judgment of England's court refers to Michael Snow's Ontario moral rights case, and there is no better way to acquaint readers with this subject-matter than by revisiting Snow's precedent setting case.
Snow is the internationally renowned Canadian artist who created the sculpture composed of 60 Canadian Geese on display in Toronto's Eaton Centre (titled "Flight Stop"). During the 1982 Christmas season, the Eaton Centre tied red ribbons around the necks of the geese and Snow went to court to have the ribbons removed. In court, Snow was
"adamant in his belief that his naturalistic composition (had) been made to look ridiculous by the addition of the ribbons and suggest(ed) it is not unlike dangling earrings from the Venus de Milo."
Evidence introduced into court showed that Snow's opinions were shared by other well-respected artists and people knowledgeable in the field. The judge deciding the matter said:
"the ribbons do distort or modify (Snow's) work and (Snow's) concern (that) this will be prejudicial to his honour or reputation is reasonable under the circumstances."
In the Glider case, the lawyers for the Plymouth City Council argued that the Snow precedent did not apply to their circumstances in that the changes to the brochures were minor in comparison to what occurred to the be-ribboned Canadian geese.
The lawyers for Glider introduced a 1991 precedent setting case from France's Supreme Court (Cour de Cassation) in which the estate of the famed film director, John Huston, was successful in advancing the droit moral to prevent Turner Entertainment from colourising Huston's black and white film, the "Asphalt Jungle."
The judge decided that Glider's moral rights were not infringed upon. With respect to the colour rendering changes, the judge said: "They do not come anywhere near what I perceive to be the gross differences between a black and white film and a colourized version of the same film."
With respect to the other modifications, the judge said:
"they are all peripheral aspects (of the works)… (they) are so trivial as almost to require inspection under a magnifying glass. The differences may be such that the two versions could well be the subject of a Spot The Difference competition in a child's comic."
Canadian advertising agencies can learn two things from this case. The legal injury contemplated by an infringement of moral rights is a distortion or mutilation of a creator's work that prejudices his or her honour or reputation. As the judge in the Glider case put it: "it is not sufficient that the author is himself aggrieved by what has occurred." What you can first learn from the case is this: if another agency subsequently modifies your work, the fact that you are incensed about it will be beside the point. As in the Snow case, the relevant question to examine will be, has your reputation been prejudiced.
You can also learn this from another statement made by the judge in the Glider case: "it (is) wrong to elevate (trivial) differences" into a moral rights offence.
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