Of Pride and Prejudice: Mangled Art, Mutilated Statues, Hypersensitive Authors and the Moral Right of Integrity

The issue of how much protection should be given to the so-called ‘moral rights’ of artists has intrigued and engaged scholars and policymakers for decades. Although the moral right of integrity seeks to protect an artist’s work from ‘derogatory treatment’, there is no universal consensus on the standard by which ‘derogatory’ is to be defined, and the appropriate test for ‘prejudice to reputation or honour’ remains a question of some uncertainty. In particular, it is not entirely clear whether mere offence on the author’s part is sufficient or whether objective harm to the author’s reputation is required. This article seeks to endorse the objective test adopted in the United Kingdom (‘UK’) and other common law jurisdictions for ‘prejudice to reputation or honour’ in relation to the moral right of integrity, but argues that a strict objective standard that is rigidly applied to all works can lead to unfairness in some cases, and should be tempered by a doctrine of ‘presumed prejudice’ for works of tangible visual art that have been modified without authorisation. Of the ‘common law’ jurisdictions compared in this article — the UK, Canada and Australia — only Canada currently prescribes a framework of ‘presumed prejudice’ for modified works of tangible art in its domestic copyright legislation. This article explores the feasibility of transplanting the Canadian framework for presumptive prejudice into the Australian copyright system, so as to bring about a fairer distribution of power between authors and users of visual artwork.