Ideological Vandalism of Public Statues: Copyright, The Moral Right of Integrity and Racial Justice

Abstract

This paper considers the regulation of ideological vandalism by the Australian copyright and moral rights regimes in the context of the defacement of public art statues that occurred in Australia and overseas during the Black Lives Matter protests in 2020. Statue vandalism is approached as a form of anti-racist or anti-colonial iconoclasm that contributes to discourse around previous and continuing racial inequities. Law is approached as a form of symbolic action that can consolidate the alienation and othering of vulnerable groups in public spaces. The authors investigate whether, when public statues are within the copyright term, intellectual property rights symbolically devalue anti-racist discourse by de-prioritising agonistic art encounters. It is identified that copyright’s exclusive rights do not render direct physical interventions with the statue unlawful, but that the moral right of integrity held by the statue’s creator is problematic. The moral right of integrity privileges the connection between the artist and their work as a matter of reputation, and any public interest in the graffitied counter-monument is irrelevant to a finding of infringement, which in our view justifies reform. The paper concludes that public spaces should be democratic spaces, and that intellectual property law in post-colonial states and states with a history of racial injustice should do more in support of this goal.