Is it legal to modify a work in public domain?

'Is it legal', 'can I do this' type questions and discussions.
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Halie0201
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Is it legal to modify a work in public domain?

Post by Halie0201 » Wed Mar 22, 2017 7:40 pm

I have a question regarding modifying a work in public domain. Before, in my understanding, a work in the public domain can be used in the way whatever people like. But recently, when I look up the copyright law of some Europe countries, I found the moral rights of the works will never expire, such as Spanish copyright law. It means that I cannot modify the work in the public domain without permission because the integrity of the work will be protected even after the copyright duration. I want to ask about the moral rights in British copyright law. Is it allowed to modify the public domain works in British? Like Mona Lisa, many people make a spoof about this painting, is this an infringement in British?

Besides, for some pictures of public figures, if the picture itself is in public domain, is it publicity right and copyright infringement to make a spoof of this figure? Like adding a pair of glasses to Hitler or change facial expression of Hawking for parody?

Thank you for your help!

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AndyJ
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Post by AndyJ » Wed Mar 22, 2017 8:29 pm

Hi halie,

While you are right that in several European countries moral rights continue well beyond the normal copyright term (in France the right is perpetual for instance, but then it is also perpetual in China) not all modifications will necessarily infringe the integrity right. That said, France has probably the most stringent attitude to what would count as prejudicial to the author's honour or reputation, and relatively minor and seemingly benign adaptations have been found to infringe the author's integrity, rather than the integrity of the work itself as might apply in other jurisdictions.

However you asked specifically about the situation in the UK. Here moral rights only last for the same length of time as the economic rights in copyright, that is to say 70 years after the death of the author. What's more the criteria for what would amount to prejudice to the author's honour are also much narrower, and would probably be trumped by the parody exception in most cases.

Publicity right is altogether different. Although there is no publicity right in the UK, if you produced a caricature of Stephen Hawking which was defamatory then in theory he could sue on the grounds that your publication 'caused or is likely to cause serious harm to the reputation of the claimant' (Section 1 Defamation Act 2013). In reality this is quite a high bar to clear, although following the recent case of Jack Monroe v Katie Hopkins perhaps not quite as formidable as was once thought. And there are several defences to a defamation claim such as truth, and honest opinion. Obviously if you wanted to change Hawking's expression, much would depend on what you changed it to! On the other hand you cannot defame someone who is dead, so Hitler would be fair game.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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