Law & artistic freedom

Print edition : January 09, 2015
This analysis of the artists’ rights is relevant for India.

AT a time when freedom of expression has come under fierce attack, after a period of growing restrictions, this book provides invaluable assistance to all those who are engaged in fighting the good fight. Paul Kearns teaches public international law, human rights law, and law, literature and art. He is also author of The Legal Concept of Art (Hart Publishing, Oxford, 1998). In the book under review, he breaks new ground. As one might expect, there are essays on the law and blasphemy, obscenity, public decency and incitement to religious hatred versus free speech.

But what makes this book particularly relevant to us is his analysis of the law on the contemporary rights of artists in England, France and the United States. Rulings of the European Court of Human Rights and European Union Law are also discussed. The author traces the historical development of the law along with movement in public opinion. The notion of “art” in these collected articles is construed broadly, to include, inter alia, visual art, creative writing and film. Some of them traverse socio-legal, jurisprudential and interdisciplinary grounds and cover, quite exhaustively, the interaction of public moral laws and art in various jurisdictions.

The law enforces society’s notions of morality shared by its legislators and judges. But, as Oliver Wendell Holmes sagely remarked, the law always lags behind public opinion, and public opinion, behind social necessities. This accounts for our Supreme Court’s illiberal approach, so vividly illustrated in Arudhanti Roy’s case. In other rulings, the learned judges seem not to be aware of the fact that a work—or a film—of historical fiction is essentially a work of fiction albeit based on a phase of history. It is, therefore altogether wrong to demand that the producer or author, amazingly, carry a disclaimer that the narrative is a piece of fiction and has no relation to reality.

The author points out that “Freedom of artistic expression can be justified in at least two ways. First, to express oneself artistically is part of an individual’s right to personal fulfilment. Secondly, in the course of artistic expression it may be discerned that certain truths are made apparent, and these truths contribute to the noble search for truth as a general human endeavour. But art possesses other virtues more peculiar to it that militate in favour of promoting artistic efforts. On a spiritual or religious plane, it is arguable that being creative is a natural imitation of our Creator’s creativity, whatever form one considers that principal creative entity to take…

“Art has its own distinctive ontology and, because of this, should be respected as an autonomous phenomenon, as evidenced by its own rules, within its own canons, however much these might mutate over time. A difficulty faced by the art-law relation is that law tends, in its public-moral capacity, to censor putatively offensive objects in a contrary, undifferentiated way which sometimes results in art’s cultural autonomy being ignored, even though its independence of characteristics and operations is socially and culturally acknowledged.”

Indian readers and activists particularly will find the author’s analysis of artists’ rights particularly relevant. “Artists’ rights are a rare topic in legal scholarship, and it is a common proposition that art and law are clearly poles apart in terms of their basic ontologies and associated cultural infrastructures. Artists are not renowned for their business acumen, and it is not just a romantic notion that artists are usually oblivious to the law and their rights. Copyright inheres in created objects automatically, right from the moment of their physical manifestation, and artists are therefore saved the trouble of formally registering their central intellectual property right courtesy of this deliberately helpful and paternalistic gesture on the part of the law. In other respects, it is arguable that although artists who achieve some popular acclaim are frequently lauded for their creativity, they are habitually denied financial benefits commensurate with such encomium.

“In the postmodern environment, this is not the case with multimillionaire artists such as Damien Hirst, but it certainly was the case with earlier artists such as Van Gogh, who famously sold only one painting during his lifetime, and who would now be considerably wealthier given the extravagant sums now paid for his works.”

There is no attempt to blur the issues or avoid controversy. The book instructs us in the law, and is a truly pioneering work.

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