The right of integrity is infringed if the work or film is subjected to derogatory treatment, which is prejudicial to the author’s honour or reputation (ss 195AI–AL Copyright Act 1968 (Cth) (Copyright Act)). Derogatory treatment is basically:
- the material distortion, mutilation or alteration of literary, dramatic or musical work
- displaying an artistic work or building, or the exhibition of the work in a derogatory manner or place
- material distortion, mutilation or alteration of a film; or the doing of anything in relation to a work or film that is prejudicial to the creator.
The right to integrity contains two elements. There has been:
- a material distortion of, the mutilation of, or a material alteration to the work and
- a distortion or the doing of anything else in relation to the work, which is prejudicial to the author’s honour or reputation.
The moral rights provisions refer to derogatory treatment as a material distortion, mutilation and/or material alteration, which seems to indicate that it protects the physical element of a work. While derogatory treatment can also include the exhibition in public of a work that is prejudicial to the author’s honour or reputation because of the manner or place in which the exhibition occurs, it is not clear whether an unauthorised modification of a work in a material form, which does not touch the physical, is protected. An example of when this would occur may be in the case of Indigenous artists, where reproduction of art works on carpets or on tea towels may be considered highly offensive and derogatory to the creators and their communities, but the design may not be sufficiently appropriated and changed to attract the protection of these provisions.
Prejudicial to honour and reputation
Derogatory treatment also refers to the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation. Uncertainty seems to arise as to whether a treatment of an author is to be judged from an objective or subjective standpoint (i.e. objectively judged by the court or subjectively by asking the author’s opinion). One suggestion is that the notion of reputation may be interpreted as similar to that defined in defamation law. That being the case, the question of whether the treatment of a work is considered to be prejudicial to an author’s reputation would probably be judged objectively.
There is also a question as to how the courts may interpret the word ‘honour’. If one assumes that honour is how a person views themselves, prejudice to honour may contain stronger subjective elements as in the following examples:
- A composer’s song is used in a documentary as the title song to promote overtly racist and political material, which was not the composer’s intention.
- An artist sells their paintings to a collector. When they visit the house of the collector they find that the background has been changed on each painting to coordinate with the collector’s furniture.
- A novel is adapted into a movie. However, pivotal aspects of the novel are excluded and less important aspects of the book are exaggerated, changing the entire tone of the original work.
- An artist is asked by a gallery to hold an exhibition of their work. With permission, the gallery produces a catalogue that shows various illustrations of their work. After the exhibition, the photographs of the artwork are removed from catalogues and turned into badges that are then sold to the public. The artist states that such a treatment of their work trivialises the nature of the work and they would never have given permission for the catalogue had they known what it would eventually be used for.
- A sculpture is donated to a museum. The museum curators decide that the sculpture should be spray-painted and modified to make it more accessible for children’s play.
- An artist buys a portrait of a well-known politician and then cuts it up into pieces, reassembling it in a different order in a parody about mental health and politics.
- A department store commissions a sculpture that does not fit in the main foyer, so they remove the top third of the work.