An art collector in Spain has been left unimpressed by the attempts of a furniture restorer to restore a Baroque painting by Bartolomé Esteban Murillo. There were two attempts to fix the art resulting in what can only be considered a new take on the Immaculate Conception.

This incident has been compared to the 2012 botched do it yourself “restoration” of the Zaragoza fresco of Jesus Christ. Type “monkey christ” into google to see the transformation. These instances have highlighted the fact that there appears to be no law in Spain forbidding people from restoring artwork and this has been criticised by the Professional Associate of Restorers and Conservators. In 2012, the Zaragoza fresco “destroyer” ended up demanding royalties for her work following the increase in footfall to the site.

This raises a couple of interesting intellectual property questions. Firstly, does defacing a priceless piece of art not infringe on the copyright? Secondly, if you carry out a do-it-yourself restoration, do you become author in the new copyright work?

The Moral Rights

The protection against others defacing an original work are known as moral right. The moral rights are non-economic rights of the author and the relevant right is the right to integrity (the right to object to derogatory treatment). These rights remain with the author of the work and cannot be exercised by anyone else.

Derogatory treatment can include deleting, altering or adapting the work and includes distortion or mutilation – any modification that would harm the authors reputation is considered derogatory treatment. There was a recent case in the Danish court involving an original painting by Tal R which was intended to be cut up and used as watch faces for a section of watches. Tal R was successful in obtaining an injunction against the watch maker to prevent them from cutting up his original work.

This case is highly relevant to art that has been subject to the botched restorations and it highlights the importance of moral rights. For the Zaragoza fresco or the Murillo the reputation of the authors of the original work would be significantly harmed when viewing the modification. Therefore the moral rights are likely to have been infringed. However, because they were created so long ago, there is a question of whether any moral rights still exist in the original works.

The Copyright Term

In the UK, copyright generally lasts for the life of the author plus 70 years. Following this term, the works enter the public domain and can be used by anyone without permission and moral rights expire as well. It is worth noting that copyright varies from country to country so the rules that apply in England and Wales do not apply for all.

Fortunately, in Spain (and France) the moral rights last indefinitely. This means that there is the possibility of an action against the “restorer” after the author’s death by the executors or heirs, or by the State itself. As a result, the Spanish authorities may well consider it unnecessary to pass a new law, but rather use copyright laws to prevent further botched restorations.

Would copyright protect the new “botched restoration” work?

Although copyright protects different types of original work (irrespective of the quality of that work), as a matter of public policy, the courts have in the past refused to protect works which they consider to be immoral or obscene. The English courts have considered this issue in the Spycatcher case which related to a book by Peter Wright about his time in the British Intelligence Service.

The UK Government tried and failed to prevent the publication of the book but it was successful in denying Mr Wright copyright in his work. This was on the basis that the book had been written in breach of the duty of confidence he owed to his employer. The House of Lords held that because of the “disgraceful circumstances” in which he had written the book, he would not benefit from copyright protection in the work.

As a result, the circumstances in which the new original work has been created may be taken into account by the court when considering whether copyright subsists and as a matter of public policy a court may well find that it does not.

Hopefully, this is the last time we see priceless art being ruined by attempts at restorations. Copyright laws may well have the protections needed for authors who created the original works long ago. Copyright may also not subsist in the new works which may dissuade further do-it-yourself restorers.