Does copyright protect Soviet-era monumental art?

The recent destruction of the mosaic during the renovation of the fire station at VDNKh and the ensuing debate, marked by a complex interplay of historical, artistic, political, and legal arguments, show, more than anything else, that Soviet-era monumental art in contemporary Ukraine is still in a rather precarious state.

When it comes to the legal status of the monumentalism of that time, the usual leitmotif is the question of whether it can-or-should-be considered cultural heritage (the reaction of the VDNKh Director General to the above-mentioned case is in this vein). However, granting an object the status of a monument, which entails protection under the Law “On Protection of Cultural Heritage,” is not really a purely legal issue. The criteria for making such decisions refer to the need for historical or aesthetic judgment, albeit embedded in a legal procedure. This inevitably leads to a new round of the same debate, even if it now takes the form of legal arguments and continues in the courtroom. The danger of this situation lies in its logical extremes, when the solution of an inherently extra-legal question: does a certain object deserve to belong to the cultural heritage? is left in the hands of lawyers in the last instance. Unfortunately, this is no longer a hypothetical slippery slope: When deciding on the case of granting the status of a monument to “Kvity Ukrainy” at the end of last year, the judge saw no problem in simply discussing in the text of the decision the “inconsistency” of the authorities, who “on the one hand, ‘clean up’ everything Soviet in the capital and the state, demolish monuments, change street names, but when the question came up about a private investor and a Soviet-era building that [… ] has no historical value, they immediately […] stood up to defend this building in order to allegedly [sic! ] to preserve its historical Soviet value.”

There is at least one other legal mechanism that is mostly not mentioned in such discussions: copyright. Perhaps, in the case of Soviet-era works (especially if they were intended to be public art of that era) and against the totalitarian nature of the Soviet regime, we have an unconscious tendency to look at the author secondarily, as a tool in the hands of the state machinery of the time. But the story is not without irony. Whatever rudimentary or rather illusory rights the Soviet state might have recognized for authors, they did not disappear with the disappearance of this state but rather survived it and continued to operate in independent Ukraine, where the chances of obtaining their protection are at least non-zero.

Below, I will try to look at several real-life situations related to Soviet monumental art from this perspective: were the author’s rights violated, and what mechanisms could he (or their heirs) use to protect them?

Case 1. Distortion

These are the side facades of a residential building at 50 Vaclav Havel Boulevard in Kyiv:

– with typical patchwork insulation for residential areas of this age.

The relative atypicality of the situation is that the apartment owners went beyond the general aesthetic degradation of urban space. They also decided to ignore the fact that the walls of their house contain very specific works, the mosaic panels “Pottery” (from the series “Folk Crafts,” which includes two more panels on similar themes on the neighboring building) and “Sun.”

The very first tool in the copyright arsenal designed for such cases is the non-property right to demand the preservation of the integrity of a work, which includes the right to prevent any distortion of the work. The Law “On Copyright and Related Rights” does not specify what exactly can be considered “distortion”; in my opinion, the situation above quite obviously falls into this category.

The peculiarity of non-property copyrights is that they are perpetual (unlike property rights, which are valid for the life of the author and 75 years after his death). In addition, claims to protect this category of rights are not subject to a statute of limitations, meaning that the author may go to court regardless of the time that has passed since the infringement.

Although moral rights are not formally inherited, the law actually allows the author’s heirs to protect these rights on their own behalf after his death. Therefore, in the case of the Vaclav Havel panels, any of the heirs of any of their three authors, Valeriy Karas, Ivan Apollonov, and Oleksandr Dolotin, can claim a violation of the right to the integrity of these artworks.

The right to the integrity of a work has another distinctive feature. It has been mentioned in one form or another in all copyright legislation since 1963. The Civil Code of the Ukrainian SSR, which was adopted that year, first mentioned the author’s right to the “inviolability” of a work, which was then understood as a prohibition to make changes to the work not authorized by the author. In the Law “On Copyright and Related Rights,” both in the original version of 1993 and in the version of 2001, this right is defined closer to the wording of the Berne Convention – as the right to prevent distortion, alteration, change or other encroachment on a work that may harm the author’s honor and reputation. And the current Law of 2022 went even further, not mentioning infringement of honor and reputation as a prerequisite for establishing an infringement.

Why is this chronology important? One of the questions that has not yet been settled is whether the scope of an author’s rights changes with the adoption of new copyright laws or whether their scope is “fixed” by the legislation in force at the time of the creation of the work. The issue becomes particularly acute when it comes to property rights. In Soviet law, they were interpreted radically differently than in the legislation of independent Ukraine: in Soviet times, there was no concept of the author’s exclusive right to authorize and prohibit the use or reproduction (copying) of their work, and the maximum they could hope for was to receive monetary remuneration for its creation. (Although this interesting discussion is beyond the scope of this publication – I am convinced that the law in force at the time of the infringement should be applied, and if the infringement occurred in 2023 in relation to a work created in the 1960s, the relevant law is the current Law of 2022, not the Civil Code of 1963).

However, as we can see, in the case of the non-property right to the integrity/inviolability of a work, the difference is not so striking. Its essence has remained unchanged over the past 60 years. The violation by the apartment owners in 2017 would be no less of a violation if they had committed it in 1967.

The law does not specifically state what claims an author or the author’s heirs can bring to court in the event of a distortion of a work. In such a situation, all general remedies are available. Among them, the most likely candidates are either compensation for damages or an obligation to restore the situation before the infringement. Thus, apartment owners can be forced to restore the murals to their original state through the courts. At least in theory. The chances of testing this possibility in practice depend only on the willingness to initiate litigation.

Finally, two more examples from the same section: sgraffito in Nadvirna, Ivano-Frankivsk region, and mosaics in Olytsia, Volyn region; in both of them, the main instrument of violation is the window.

Case 2. Distortion through inaction

The above cases result from purposeful (even if frivolous) actions. Let’s talk about the distortion of work through inaction.

The 1967 panel “Ukrainian Song” by the Ukrainian monumentalist Stepan Kyrychenko on the facade of the building opposite the Kyiv Opera House has long looked like this:

It began to collapse in the early 2000s. And during all this time, the owner of the building (the state was the owner until the building was sold to the Zhytomyr Furniture Plant in May 2023 during privatization) did nothing to influence the situation.

Can we say that the owner’s inaction is the reason for the distortion of this work?

The cause-and-effect relationship, where the cause is inaction, is, by and large, an artificial legal construct. In such cases, there is always a “real” cause, such as the influence of natural factors. But if someone should have intervened in the natural course of things and neglected this duty, we hold them legally responsible for the consequences.

In the case of the “Ukrainian Song”, it will be necessary to demonstrate that the state, as the owner, had a legal obligation to take care of the building’s condition and failed to do so. The likely line of argumentation here will be a reference to “property binds” from the Constitution and the burden of maintaining property from Article 322 of the Civil Code. The state, in turn, may try to prove that there was another factor that was closer to the consequence of the defacement of the panel (perhaps it was the result of someone’s specific actions, but we don’t know about it?)

In short, this could be a very interesting legal battle — in addition to the opportunity to set a precedent for the obligation of owners to preserve works of monumental art, regardless of their status as cultural heritage.

Case 3. Restoration

The road to hell is paved with good intentions. The same can be said about the road to copyright infringement. As in the following case:

– that happened with the stele’s restoration at the Mykolaiv entrance.

Does such a change to the work cross the threshold of “distortion”? This can be debated. However, the right to the integrity of a work, which we have discussed so far, is broad: it allows the author to prevent not only distortion but any change that contradicts the author’s intent.

The main (though not the only) changes concerned the color scheme. Again, we can debate whether the new look and feel of the mosaic is successful (in my opinion, it is not), but there is no doubt that it is completely different from the way the author saw it. (Here, I cannot help but recall a French court case regarding the colorization of a black-and-white film. The court had to decide whether this was a violation of the non-property right to the integrity of the work, and it answered this question in the affirmative.)

The situation is also interesting because it violates not only the author’s non-property rights but probably also property rights: since 1993, the law has defined alteration as one way to use a work, which is possible only with the author’s permission.

Case 4. Destruction

The central dilemma of the right to inviolability of a work is in the balance of interests of the author of the work and the owner of the material carrier in which the work is embodied. In its most general form, the owner cannot, without the author’s consent, change this material object in such a way that the work itself is changed (I include “distortion” in the general category of “changes”). However, the wording of this right in the law deliberately avoids mentioning the destruction of a material object.

The law considers destruction of a work as a special case, for which the law also tries to find a kind of balance of interests, although in a different way.

According to Article 10(2) of the current Copyright Law, if the owner of a work of fine art wishes to destroy it, they must first offer the author to buy it back at cost; and if this is not possible, he must give the author the opportunity to make a copy of the work.

(By the way, in 2001-2022, a similar rule applied to works of architecture. The reasons for narrowing its scope to works of fine art only remain vague. As can be seen from the comparative table to the draft law of 2022, one of the MPs proposed to differentiate between the regulation of these two categories of works. The parliamentary committee considered only amendment No. 196 to remove works of architecture from the existing rule and rejected the related amendment No. 197 to introduce a separate rule on the rights of authors of such works in case of their destruction/reconstruction. No further explanation of this decision is provided in the comparative table).

This right – let’s call it the “right of redemption” – raises several interesting and important questions.

First, does the right of redemption belong only to the author or also to their heirs? The right of redemption is defined separately from both property copyrights (which are inherited) and non-property copyrights (which are not inherited, but some of which heirs have the right to protect), although, in essence, it is closer to non-property rights.

Second, how broad is the category of “works of fine art”? The 2022 Law has a separate definition, but it is not exhaustive, as it ends with the word “etc.” (“sculpture, painting, drawing, engraving, lithography, work of artistic design (including stage design, font design), etc.”) – Article 1(58)).

Third, where is the line drawn beyond which the preservation of a material object is objectively impossible? For example, if the owner of a building with a mosaic intends to demolish it, is it possible to imagine separating the mosaic in order to give the author the opportunity to buy it back? What about a bas-relief? For example, like the one on the frieze of the building at 2 Pirogova Street in Kyiv:

Fourthly, what can the author (or their heirs?) claim if the owner did destroy the work without fulfilling their obligation to offer to buy it back? As was most likely the case with Ernest Kotkov’s sculpture Dnipro Waves in Dnipro:

– or the mosaic in Makariv, which survived the Russian occupation and was destroyed in August 2022 by the building’s owner:

Unfortunately, the 2022 Law does not provide a clear answer to all these questions.

(By the way, the only example of the application of the rule on the destruction of works in Ukraine was the case of the painting “Koliivshchyna. The Last Judgment,” which was destroyed in the Mystetskyi Arsenal in 2013. Then, the author was able to obtain only compensation for moral damages in the amount of UAH 1,000).

Case 5. Copying

Sometimes, destruction is not just destruction. Here is an interesting example from Chernihiv:

The authors of the mural, which replaced the mosaic on the facade of the maternity hospital, tried to recreate the original story to some extent. Reproduction of a work without the author’s consent constitutes plagiarism and violates property copyright. Is there any plagiarism here?

The question is not as simple as it may seem. While the non-property right to the integrity of a work protects the author’s intent in its entirety, the property right to authorize and prohibit the reproduction of a work applies only to the form, but not to the ideas embodied in the work. A mosaic and a mural are similar only at the level of ideas. 

However, the distinction between an idea and its expression becomes more difficult the more abstract the work is.

For example, the façade of the House of Artists on Lvivska Square in Kyiv has a distinctive decoration:

A counter in a (notorious) coffee shop opposite this building has a suspiciously similar decoration:

If we recognize that this particular pattern of combining colors and geometric shapes is a work (it most likely is because it is the embodiment of the author’s creative decisions; it most likely belongs to the category of “works of artistic design”), it would be fair to say that in such a work, idea and form are to a large extent inextricably linked. In this case, can the author prohibit others from copying this form, and would this not be tantamount to monopolizing the idea?

The classic solution to this dilemma is to introduce a separate legal protection regime for industrial designs (in Ukraine, they are known as “industrial designs”). However, recent trends in EU law tend to gradually blur the clear line between works and designs: in the Cofemel case, the EU Court of Justice recognized that the protection of a design under a separate legal regime does not preclude its protection as a work if the design/work embodies the creative decisions of the author.

Therefore, I cannot rule out that in the hypothetical case of Architects of the House of Artists vs. Khlibnyi, the scales will not be in favor of the latter.

Case 6. Decolonization

So far, we have been discussing the balance of private interests. In the last case, a new variable appears – the public interest.

On 27.07.2023, the Law “On Condemnation and Prohibition of Propaganda of Russian Imperial Policy in Ukraine and Decolonization of Place Names” came into force. Among other things, it prohibited the dissemination and public use of symbols of Russian imperial policy in works of art if this leads to the justification and glorification of this policy (Article 5(3)(4)).

The law obliges local governments to either dismantle and move “monuments” and “memorial signs” containing such symbols out of public space (Article 5(4)) or remove individual elements with such symbols (Article 5(5)).

It is easy to see that the second option contains inevitable friction with one of the author’s rights, which I mentioned above, the right to the integrity of the work. The situation with the mural “Print of Our Party” in Kremenchuk by Mykola Khakhin is an illustrative example.

The main problem with this panel in light of the decolonization law is the names of Soviet newspapers. Obviously, the city council classified them as symbols of Russian imperial policy. However, the question of the implications of this classification for the panel’s fate caused some discussion.

At first, local deputies considered leaving the panel unchanged, although accompanied by a sign explaining the context, much like Kyiv-Mohyla Academy did in the 1990s with the mosaic of the former naval school on the pediment of one of its buildings (the mosaic was eventually plastered over in 2022). At the same time, the option of dismantling it was considered. But it seems that in the end, the deputies decided to use the second option from Article 5(5) of the Law – to replace only certain parts, the names of the newspapers themselves.

As we already know, such changes are impossible without the author’s consent. Or are they still possible? After all, such a possibility and obligation are provided for in the law?

The solution to this question (unexpectedly) lies in the realm of constitutional law.

Copyright has its own constitutional basis – Article 54 of the Constitution (which, by the way, uses an interesting phrase “moral and material interests” that stands out from the general terminology of specialized legislation and is closer to the American tradition of copyright with its moral rights).

However, constitutional rights are not absolute. Any law that regulates the limits, procedures, and specifics of the exercise of such rights is an interference with these rights. If the Law on Decolonization requires changes to artworks placed in public space (regardless of the author’s consent), it constitutes an interference with the right provided for in Article 54 of the Constitution.

The essence of the constitutional problem is the admissibility of interference. To assess it, the Constitutional Court of Ukraine formulated a test of three criteria that the legislator must adhere to: the restriction must (1) be introduced in the law, (2) pursue a legitimate aim, and (3) be proportionate to that aim.

The proportionality requirement is probably the most interesting of the three. In the interpretation of the Constitutional Court, which coincides with the practice of many European constitutional courts and the ECHR, a proportionate restriction is one that, among the possible means of achieving the goal, chooses the least burdensome for human rights and freedoms. In assessing proportionality, we must ask the question: Is there any other reasonable way to achieve the same goal that would interfere with individual rights to a lesser extent?

Was there any other way to balance the individual rights of the author with the public interest in cleansing public space of imperial symbols (which is undoubtedly legitimate in itself)? I can think of at least one: before making a decision to dismantle or modify a work, the author should be able to buy back the work in its original form, provided that after the purchase it is removed from public space.

A logical – albeit theoretical – consequence of the existence of a less burdensome way to achieve the goals of the restriction of rights should be a conclusion that the restriction is unconstitutional. Although, as with all the hypotheses I have expressed above, this hypothesis can only be tested in practice in a real court case.