Reacting to extremist German political propaganda – a moral rights issue?

Posted on: May 10, 2019 by

A lot of commotion was caused recently by a German right-wing party’s choice of political propaganda: the use of a 19thcentury painting with a very controversial slogan splashed across it.

The controversial propaganda © Twitter

We are talking, of course, of Alternative fur Deutschland (AfD) and Jean-Léon Gérôme’s Slave Market, a painting from 1866 currently on loan to the Clark Art Institute in Massachusetts, US. The slogan on the poster reads Damit aus Europa kein “Eurabien” wird!’, which can be loosely translated into English as ‘so that Europe doesn’t become Eurabia’. It is easy to see why such a poster, dubbed ‘spectacular’ in AfD’s official Twitter page, would provoke strong reactions.

The institution which is currently in possession of the painting was among the first to condemn the use of this artwork in this xenophobic propaganda, having appealed without success to the leaders of AfD to cease and desist from circulating the image in this context. Much of the news coverage of this incident so far has focused on the absence of legal grounds through which to stop this propaganda. Indeed, Jean Léon Gérôme died in 1904, so his works entered the public domain decades ago. In the absence of copyright, it seems there is little the Clark Art Institute can do to contain unauthorised or undesirable uses of it.

However, the absence of copyright in this instance need not mean that there are no potential legal remedies to the situation in question and indeed, it does not. Copyright has, in fact, a counterpart to its protection of economic interests, in the form of its less well-known sibling, moral rights.

Moral rights are a rarefied creature which protect, amongst other things, against unauthorised modifications of an artwork that are detrimental to the honour or reputation of the artist. In the polarised politics of our day and age, there is, perhaps, an argument that AfD’s modification would be detrimental to Gérôme’s honour or reputation, given that it would immediately identify him with radical right-wing political views, something Gérôme, or his heirs, might well object to.

It is crucial to bear in mind that whilst copyright in this artwork has long expired, Gérôme’s moral rights have not. This is because he was a French artist and under French law, as established in the Victor Hugo case ruled by the Cour de Cassation in 2007, moral rights are perpetual, meaning they never expire and as such long outlast copyright protection. As a result, any heirs of Gérôme around today would be the current holders of Gérôme’s moral rights over Slave Market. Furthermore, regardless of where such a moral rights claim might be brought, based on the precedent established in the John Huston Asphalt Jungle case in 1991, French law on moral rights must always be applied as a matter of ‘ordre public’. In this sense, it might be considered a stroke of luck that Gérôme was French – after all one never knows when legal protection via one’s moral rights will be needed against right-wing political propaganda more than one hundred years after one’s death, but even in these circumstances, moral rights are there to help.

A possible counter-argument, of course, could be that the modification was not made on the actual painting – thank Heavens – but only on an image of it, and that therefore it could not be construed as a violation of the artist’s moral rights over the specific artwork. In a sense, this issue is at the root of the hypothetical legal feud posited by Yonover between Leonardo da Vinci and Marcel Duchamp over the latter’s addition of a moustache and ‘L.H.O.O.Q.’ to a postcard featuring the former’s masterpiece. However, the aforementioned Huston case also shows us that perhaps French courts might be willing to turn a blind eye to this subtlety, as in that case, which involved the modification of a black and white film into a colour one, it was a reproduction, rather than the original black and white film which was used.

Far-fetched as it may sound, it might well be worth researching Gérôme’s family tree in the context of a possible moral rights claim, rather than simply throwing in the towel and concluding, regretfully, that there is nothing we can do about this propaganda.

If you are interested in learning more about copyright, moral rights and other aspects of intellectual property, make sure you don’t miss out on IAL’s upcoming Diploma in Intellectual Property and Collections, a three-day course taking place in Central London from June 24thto 26th.