Copyright in the Courts: How Moral Rights Won the Battle of the Mural

By Binny Kalra

The moral rights of an artist over his work were put to the test in a High Court of India in 1992, in what was to become a 13-year legal battle, finally settled in 2005. The following account of this landmark case was written for WIPO Magazine by Binny Kalra, a senior attorney specializing in intellectual property litigation at the New Delhi firm of Anand and Anand, which represented the artist.

Sehgal’s mural

Back in 1959, the Ministry of Works, Housing and Supplies of the Union Government of India commissioned a talented sculptor, Amar Nath Sehgal, to design a mural. The work was to adorn the walls around a central arch of the Vigyan Bhawan, a venue for important government functions in the capital city. The design was given the green flag by the first Prime Minster of India, Pandit Jawahar Lal Nehru, and the mural was completed in 1962. In its final shape, it measured a mammoth 40 feet high and 140 feet long.

The mural won widespread acclaim, and gave the world a glimpse of the ‘real’ India – its farmers, artisans, women and children, their daily chores and celebrations, frozen in time, and molded from tons of solid bronze. For nearly 20 years the mural attracted dignitaries and art connoisseurs from all over the world. It became a landmark in the cultural life of the capital.

Then the Vigyan Bhawan buildings were renovated. In the process, the mural was ripped off the walls and the remnants put into store.

Poetic justice

Distressed by the destruction of his artistic work, and after petitioning the authorities for years without a response, Mr. Sehgal brought a lawsuit against the government¹ for violation of his moral rights. Specifically, he claimed that:

• the dismemberment of the homogeneous blend of the pieces of each tile in the mosaic constituted an act of mutilation;
• the Ministry’s action was prejudicial to his honor and reputation as an artist, because, by reducing the mural to junk, it dealt a body blow to the esteem and celebrity bestowed on the work at its inception;
• the obliteration of his name on the work violated his right to claim authorship.

Though too late to rescue the mural by the time his grievance came to court in May 1992, Mr. Sehgal was nonetheless granted an interim injunction restraining the defendants from causing further damage to the work. By a quirk of fate, the presiding Judge was himself an art aficionado with, literally, a flair for poetic justice. The restraining order handed down by Justice Jaspal Singh came across as an acutely empathetic one:

"Sometime in the year 1962, the barren walls of Vigyan Bhawan were blessed with a mural…created by the magic hands of eminent sculptor Amar Nath Sehgal, approved by connoisseurs of all that is beautiful … For years, it was dance to the discerning eye, and song to the ears who could hear. However, in 1979, it was pulled down and dumped in a storehouse. It is said that improper handling caused immense damage, and that bits and pieces have altogether disappeared, including the name of its creator... In a country rightly proud of its creativity and ingenuity, men who can hardly distinguish the heads of Venus from those of Mars cannot be allowed to decide the fate of artists who create our history and heritage. The cry is: Ils ne passeront pas! and in such a situation Indian courts will always be found dynamic and responsive. Section 57 of the Copyright Act provides the light…"

Robust defense

The defense objected at the outset to the power of the court to intervene in the matter. Confident that the ministry was within its legal rights, it argued that:

• the plaintiff (Mr. Sehgal) had assigned his copyright to the defendant (the government) in an agreement dated 31^st October 1960;
• the defendant had purchased all rights from the plaintiff, and was consequently free to do as it pleased with the mural;
• the mural had already been damaged in a fire in the Vigyan Bhawan;
• according to the terms of the 1960 agreement, any grievance should be referred to an arbitrator appointed by the defendant.

In the second round of the battle, the Judge held in Mr. Sehgal’s favor by dismissing the defendant’s application to refer the dispute to arbitration. The decks were then clear for the case to go to trial, though not before further months were spent in unsuccessful efforts to find a mutually acceptable solution which Mr. Sehgal felt would vindicate his honor and reputation.

Amar Nath Sehgal (left) inspects the remnants of his work. (Courtesy of Anand and Anand)

And finally…

Evidence was led, and the matter came up for final hearing². In the third key decision, Justice Pradeep Nandrajog of the Delhi High Court ruled that: "All rights of the mural shall henceforth vest with Mr. Sehgal." The court ordered the return of the remains of the mural to the sculptor, and also slapped damages of Rs.500,000 (some US$ 12,000) on the defendant.

But the fight was still not quite over. The decree was not fulfilled, and Mr. Sehgal again took recourse to the court in execution proceedings, while the defendant appealed against the decree to a division bench of the court. Ultimately, the matter was amicably resolved. After the hard fought and emotional battle, Mr. Sehgal, grateful for his victory, waived the claim of damages against the government in exchange for the return of the mural.

Protecting the soul of artistic expression

At the outset, the odds had appeared to be stacked heavily against the artist. Not only had he created the work on commission, but he had also explicitly assigned his copyright – and so all economic rights - to the commissioning ministry. He faced a powerful opponent.

Amar Nath Sehgal won his civil law action thanks to the single statutory provision on "author’s special rights" in Section 57 of the Indian Copyright Act (1957). Based on the Berne Convention Article 6bis, this codifies the concept of moral rights, by protecting an author’s right, independent of his copyright, to claim to authorship of his work, and to restrain any distortion, mutilation or modification of the work which could be prejudicial to his honor or reputation.

It is worth reflecting that, had the mural had been completely destroyed, it is unlikely that Mr. Sehgal would have obtained the same relief, particularly given the long gap between the removal of the mural and the institution of the legal proceedings. The court’s decision was influenced by the fact that the stored remnants were still redeemable, and that, on viewing them, the court could visualize the magnitude of the work.

The fact that the defendant was the government was also significant. One of the arguments that appealed to the court was that, unlike a private owner of an artwork, the Indian government had an obligation to protect, preserve and respect cultural rights and the country’s artistic and cultural heritage. This was enshrined in the national 2002–2007 Five Year Plan. Extracts from UNESCO’s non-copyright cultural conventions also helped create a link between the facts of this case and governmental obligations.

The case of Amar Nath Sehgal’s mural throws into relief the importance of the Section 57 provision of the Indian Copyright Act, and of the weight it has been accorded by courts in India. It also gives reason to thank the wisdom of those who resolved, all those years ago, that there should be a higher law to protect the soul and essence of artistic expression as much as – or more than – the physical or tangible form of that expression.

______________________

1. Amar Nath Sehgal vs Union of India through the Secretary, Ministry of Urban Development & Anr.; Suit No. 2074 of 1992 before the Delhi High Court.