The right to object to derogatory treatment of a work or any part of it.

Subsistence of the right

• the right is given to the author of a LDMA and the director of a film

Infringement of the right

• in order for the right to be infringed, an author or director must be able to show:
  • there has been a derogatory treatment of the work
  • the work has been dealt with in circumstances where the author is protected from derogatory treatment
  • none of the exceptions apply and
  • the right has not been waived for the action consented to by the author

derogatory treatment

• treatment
  • treatment of a work means any ‘addition to, deletion from alteration to or adaptation of the work’
  • A work has its own internal integrity or logic (beginning, middle, end. Line shade color… etc) (Pasterfield v Denham)
  • For a treatment of the work to take place, it seems that the defendant must interfere with the internal structure of the work.
    • Noah v Shuba 17 words were added to the claimant author’s medical guide and that was considered treatment
    • It would also cover situations where a portion of a painting was cut from its original canvas and exhibited
    • A song was chopped up and inserted into a megamix (Morrison v lightbond)
    • A drawing was reproduced in reduced size or recolored (Tidy v trustees of the natural history museum)
    • A black and white film colourized (Huston v Turner entertainment)
  • The definition of treatment that is used in the UK is narrower than is in Art 6 of the berne convention
    • It requires that the athor be able to object to ‘any… derogatory action’ in relation to a work
  • The broader definition in Berne seems to acknowledge that a treatment of a work can take place even though the composition or structure of the work is not altered.
    • It suggests that a treatment of a work can take place where the meaning and significance of the work is affected.
      • For example, a religious artwork alongside a piece of erotic art would probably not amount to a treatment in the UK however amount to treatment in the Berne Convention
  • In the absence of case law, many things could be considered as treatment.
  • Treatment is further restricted by the fact that treatment is defined to exclude translations of literary and dramatic works and arrangement or transcripts of musical works involving no more than a change of key or register. (s 80)

• Derogatory
  • Once there’s treatment, you have to show that it was derogatory.
  • Act states that a treatment is derogatory if it amounts to:
    • Distortion, mutilation of the work or if it is otherwise prejudicial to the honour or reputation of the author. (s 80)
  • In order for a work to be distorted or mutilated, the action must be prejudicial to the honour or reputation of the author.
    • Snow v the eaton center
      • Eaton center tied ribbons around the necks of the geese as decoration
      • Snow argued that this was prejudicial to his honour and reputation.
      • Court ruled for snow and ordered the ribbons be removed.
    • Tidy v Trustees of the natural history museum
      • Tidy gave the gallery the right to exhibit  series of his cartoons in black and white.
      • The gallery reuced the size of the cartoons and added coloured backgrounds.
      • Judge suggested that in order to find the gallery’s treatment of the cartoons was prejudicial to tidy’s honour, it was necessary to have evidence as to how the public perceived the defendant’s acts.
    • Pasterfield v Denham
      • County court judge argued that for a treatment to be derogatory, ‘the plaintiff must establish that the treatment accorded to his work is either a distortion or a mutilation that prejudices his honour or reputation as an artist. It is not sufficient that the author himself aggrieved by what has occurred’
    • Confetti Records v Warner music
      • Court find that there is not sufficient case for a finding of derogatory treatment of his song which comprised an insistent instrumental beat accompanies by the vocal repetition word ‘burning’ had been superimposed with a rap by another act.
      • The defendant accepted there was treatment, so the issue is whether there it was derogatory.
      • Judge found it wasn’t:
        • The words are hard to decipher militated against them being derogatory
        • the meaning of the words could only be determined by expert evidence and no such evidence is provided
        • mostly, judge rejected the argument because he had failed to provide evidence of his honour or reputation.
  • Despite all these cases, it is unclear what derogatory treatment will be in UK.

Circumstances where the author is protected from derogatory treatment

• In LDMA works, the right to object to derogatory treatment is infringed when a derogatory treatment of the work is
  • published commercially, performed in public or communicated to the public.
• It is also infringed when copies of a film or sound recording embodying the derogatory treatment are issued to the public.
• An artistic work, the right is infringed by a person who publishes commercially or exhibits in public a derogatory treatment of the work.
• The right is also infringed where someone communicates to or shows tin public a film including a visual image of a derogatory treatment of the work.
• Films, the right of integrity is infringed whenever a derogatory treatment of the film is shown or communicated to the public or when copies of a derogatory treatment of the film are issued to the public.
• Certain acts my amount to secondary infringement of the right of integrity.
  • Course of business, a person possesses, sells or lets for hire, offers or exposes for sale or hire, exhibits in public or distributes and article which they know or have reason to know is an infringing article.
  • Secondary infringement only takes place if the dealing prejudicially affects the honor or reputation of the author.

Exceptions and defences

• there are no defences for fair dealing nor the design copyright interface.
• Works created by employees,
  • The right of integrity does not apply to anything done by or with the authority of the copyright owner except in two particular situations.
  • General rule is that an employer can deal publicly with derogatory treatments of an employee’s work.
    • Example: artists who work for a design firm will not be able to use their right of integrity where their artworks are modified either by their employer or other employees.
    • An employee who drafts a report will not be able to restrain publication of a version that is rewritten on behalf of the employer.
• The exception to this general position relate to circumstances were the author/employee has been or is to be identified.
• The right does not apply to anything done in relation to such a work by or with the authority o the copyright owner unless the author or director
  • Is identified at the time of the relevant act
  • Has previousy been identified in or on published copies of the work.

Waiver

Cannot be assigned but can be waived by way of agreement in writing.

Alternative and related forms of relief

If argument based uon the moral right of integrity fails, an author may fall back on protection under common law or contract.

• if the work of the author has been substantially altered, the representation could be defamatory
  • Humphries v Thomson
    • Newspaper serialized a story but changed the characters and omitted and added other text was found by the jury to hae defamed the author by damaging her literary reputation.
  • Archbold v Sweet
    • Author successfully claimed that his reputation has been injured by the publication of a further edition of his work that contained a number of errors.
    • The new edition would have been understood by the public to have been prepared by the author.

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