Montréal is home to a significant number of street art murals that form part of its urban landscape and contribute to its distinct identity. Artists are commissioned to create murals that enhance the aesthetic character of a building and the broader neighbourhood. However, the artist’s desire to preserve their work can conflict with subsequent redevelopment plans of property owners. When questions arise regarding the extent to which artists can protect the integrity of their street art, moral rights under the Copyright Act are key. The decision in Bachand c Mural underscores the importance of considering moral rights when commissioning public art.
The facts in Bachand c Mural
An artist who created a mural in Montréal discovered, six years later, that it was no longer visible to the public because a new building had been constructed against the wall on which it appeared. Consequently, the artist launched an action against both the property owner and the organization (named Mural) that retained his services to create the mural.
For the creation of this mural, a first contract was signed between the property owner and Mural, and a second contract was signed between Mural and the artist. Problematically, the contracts did not provide the same obligation as to the length of time for which the mural had to be protected. The first contract, signed by the property owner, provided that the mural had to be protected for at least one year, while the second contract was silent on the matter but provided that the artist retained all rights in the intellectual property they created. The first contract even provided that the property owner had the right, at all times, to redevelop the property, which could result in blocking or destroying the mural. The artist was not made aware of this clause.
The property owner owned both the building on which the mural was painted and the adjacent parking lot. Six years after the mural’s creation, the owner constructed a three-storey building on the former parking lot, which obscured most of the mural.
The Court’s findings on moral rights
As the mural is an artistic work, as defined in section 2 of the Copyright Act, the author benefits from moral rights in the work, notably the right to the integrity of the work pursuant to section 14.1 of the Copyright Act. Moral rights are infringed, pursuant to section 28.2(1)(a) of the Copyright Act, when a work is distorted, mutilated, or otherwise modified in a way that prejudices the author’s honour or reputation. When a painting, sculpture, or engraving is distorted, mutilated, or otherwise modified, these types of artistic works benefit from a presumption of prejudice to the author’s moral rights under section 28.2(2) of the Copyright Act. This presumption does not apply to other types of artistic works.
The Court determined that the construction of a building hiding the majority of the mural constituted a distortion, mutilation, or other modification of the work, though it did not specify which one was applicable in this case. The Court determined the mural constituted a painting for the purposes of section 28.2(2) of the Copyright Act. Accordingly, the artist benefited from the presumption of prejudice and was not required to demonstrate prejudice to his honour or reputation.
The property owner. As the property owner respected all their contractual agreements towards Mural (the mural had been protected for one year and, in any event, there was no obligation to refrain from redeveloping the adjacent property), the Court determined that the property owner could not be held responsible for the infringement of the artist’s moral rights. The Court determined that the property owner had the right to assume that Mural had obtained the consent from the artist or that Mural would assume the consequences with the artist.
The organization Mural. In Mural’s contract with the artist, they promised more rights than they had obtained in the first contract from the property owner. Mural did not properly align the rights it received from the property owner with the rights it purported to grant the artist. As a result, the artist was unable to make an informed decision about whether to create the mural, given the absence of any assurance from the property owner that it would not later be obstructed by a new construction and that it would be otherwise only protected for one year. Mural did not take part in the distortion, mutilation, or other modification of the work, but the Court determined Mural was responsible for the infringement of the artist’s moral rights, as the contract it concluded with the property owner put in place the required conditions so that the property owner could legally distort, mutilate, or otherwise modify the work.
Given their intangible nature, moral rights are difficult to quantify when they are infringed. As the artist presented no evidence of the concrete prejudice he suffered, the Court awarded $2,500 in damages.
Lessons from the case
When contracting with artists for the creation of artistic works, parties should carefully consider the impact of moral rights with the assistance of experienced intellectual property counsel.
Moral rights can be addressed by a clause in a contract. Moral rights are not assignable, but they can be waived by the author. As moral rights belong to individuals and not a legal entity, it is only an individual and not a legal entity that can waive moral rights. If moral rights are not waived, they remain with the author of the work, even if the copyright in the work has been assigned and/or sold. Alternatively, a contract can provide for a limited period of time during which the maintenance of the artwork is guaranteed.
As an additional note, anyone considering the use of an artistic work in a campaign promoting a product, service, cause, or institution must remember that an author’s moral rights to the integrity of their work may be infringed if the work is associated with such activities in a manner that prejudices the author’s honour or reputation.
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