© Donald Richardson, 2006

When the Adelaide press announced in 1919 that a memorial would be erected in the city to the late king Edward VII, the city was assured that it would be made "by one of the best men in the Empire" - but the artist was not named. Neither was he named in a report of 19 June, 1920, that the sculpture had arrived in Adelaide from London - "in 114 packing cases" - and that the pedestal was nearing completion; however, it did name the local people who had worked on its erection - the builder (Walter Torode), the mason who cut the stone steps (W H Martin), the Supervisor of Public Buildings (A E Simpson) and the City Engineer (J R Richardson).

The memorial - which has recently been revealed in its true glory by the re-designing of North Terrace - was unveiled by the visiting Prince of Wales soon after, but the artist's name was still not mentioned on the invitation to the unveiling! Adelaide had to wait until the 16 July issue of The Advertiser to be informed that the sculptor was none other than Bertram Mackennal, Australia's only ever RA - who, soon after the unveiling, was dubbed our first artist knight. Mackennal had made the memorial before the 1914-18 war, but - because bronze was commandeered for the war effort - casting had to wait until 1919.

To us, this seems a surprising lapse in a city that prided itself as an outpost of European civilisation among the savages of The Antipodes, yet it is a paradigm of the attitude to public sculpture and architecture - indeed to any visual art - of the press in all Anglophone countries that still predominates. It takes the position that works of art are produced by queer foreigners with unpronounceable European names and questionable life-styles with whom we will never come into contact again and, therefore, are peripheral to all that really matters. So, these works appear in our midst as if by magic, created by whom we know - and care - not, descending like the "cargo" that the American planes brought to the wilds of Niu Gini in the Second World War. It's wonder that we don't hack an air-strip out of the parklands for the Super Fortresses to land on!

Of course, it has always been the practice in Europe to acknowledge the worth of artists - without whose genius and work the monuments and buildings would never even exist - by naming them whenever their work is discussed. It is also the established practice in specifically art publications to give full accreditation to authors.

This deficit in our wider culture was recognised by the Federal Government in 2000 when it passed the Moral Rights of Authors amendment to the Copyright Act of 1968. Necessitated by frequent quarrels over the ownership of the rights to movie films between directors, producers and writers, it also included the three moral rights that all artists - including visual artists and designers - must have:
o the right of attribution of authorship of the artist who created the work,
o the right not to have authorship falsely attributed (i.e., credited to someone who did not create the work), and
o the right of integrity of authorship (i.e., the work must not be subjected to derogatory treatment of any sort, such as its destruction or mutilation; nor must anything occur that is "prejudicial to the author's honour or reputation").

So, you would think that the unconscionable treatment that Mackennal suffered in 1920 would now not happen. But, not so! Mr Bill Morrow, of the legal firm Norman Waterhouse, observes that our newspapers breach the Act almost every day by not attributing the authorship of a photograph, a building or a work of art they reproduce. Observant readers will confirm that this is so. How often do we see a photograph of a business magnate posing in front of a flashy abstract or Aboriginal painting hanging in his board-room, or a fashion-model posed before one of those sculptures architects sometime characterise as a "turd on the plaza"? It even happens in our own publication.(see last issue). In every case, the artist or designer - without whose work the shot would be less appealing - loses his or her due recognition.

How do they get away with it? As Mr Morrow says, the Act provides only a civil remedy and only to individual artists. This means that its practical application awaits an artist successfully suing a publisher for non-compliance so that legal parameters can be established and perpetuated. But this is not likely to occur in the near future, artists having better things to do than taking publishers to court. A group action might be possible, but artists are as difficult to organise as cats. And the National Association for the Visual Arts, which lobbied for the changed legislation, says it lacks the resources to do anything about the situation. In the meantime, busy newspaper proprietors and editors allow the inertia of past practice to flow on.

However the moral rights do exist and it is in the interests of both artists and publishers that they be observed. Artists depend upon the publicity their works may receive to establish their reputations and, consequently, their livelihood; publishers would do well to avoid the potential of a punishing suit for damages at some time in the future.

Moral rights are not propriety rights (i.e., they cannot be sold) and they cannot be waived except by agreement - and this only prior to publication. Mr Morrow points out that it is possible that in-house newspaper photographers and cartoonists have such an agreement, at least one implied by their historical conditions of employment. Anyhow, cartoonists usually ensure their attribution by signing their works. But unattributed photographs are published every day. He also notes that, when a detail only of a work is reproduced - as in the case of the coins the Australian Mint has produced using snippets of iconic Australian paintings on the reverse (reviewed in our issue of 9 December, 2005), the publisher may plead that the legislation relates only to the use of a work in "whole or substantial part".

But, the greatest problem is in relation to reproductions of public sculptures, architecture and paintings. Readers who agree that the situation cries out for redress might consider writing to editors whenever they see a breach to the moral rights of the artists concerned.