New Zealand Law Society - Copywrong: The artists failed by the law

Copywrong: The artists failed by the law

By Craig Stephen

It could be considered the ultimate tribute: three David Bowie heads with the famous lightning strike that adorned his Aladdin Sane album, on a large wall off a car park in Wellington’s famous Cuba Street.

This amateur photographer is one of those to have snapped it, but I have no intention to use it commercially. Whitcoulls did, however, and incensed the artist, Xoë Hall, who was commissioned by a hairdresser to do the mural.

Hall made several calls and sent numerous emails to Whitcoulls demanding they stop selling the calendar and asking where they had sourced it from.

“Those were ignored in the beginning ... until my online rant about it hit the news and some really helpful advice started coming my way,” she says.

“Whitcoulls said they had bought the calendar from a distribution company in Australia, and it had originally been published by another company who have not been contactable. This has happened with other images of mine quite a few times over the years and the admin can be exhausting, chasing companies all over the globe with usually no outcome, so I thought my energy was better spent trying to pull the weed out by the root.”

Hall sought legal advice, which backed up her case.

“The most important and simple advice was learning that it is indeed illegal to reproduce photos of street art for commercial gain. Once I had that behind me, I had no trouble backing that up with cease and desist letters and sometimes invoices to any companies who had used that particular image.

“Tom Huthwaite, an IP lawyer, helped me out a lot. He ended up writing all of the content for our website. The main thing is to educate and spread awareness about the issue, not only to artists but to everyone, with the hope that eventually, one great day, it will stop happening.”

Long-standing problem

Adequate protection for artists has been a long-standing problem under copyright laws, says intellectual property lawyer Kate Duckworth.

There are several quirks of New Zealand copyright law that often leave artists feeling ripped off, she says.

One is our commissioning rule. The person who creates a copyright work normally owns it. So, if I create a painting I am the owner of the copyright.

“The exception is where the work is commissioned. The person or organisation that commissions the work owns the copyright, so if we’re talking about a street art or a mural, those sorts of art works are often commissioned and it may be a city council or private building owner that owns the copyright. That doesn’t make it okay to copy the artwork, but the artist themselves doesn’t have the right to take the case; the copyright owner does.

“Then there is the issue of incidental copying of artworks in public. Say if you take a photograph of me standing outside Te Papa and in the background is the poster for an exhibition with a painting in it. It is allowable to take the photograph including the painting as long as the painting is incidental to the photograph,” Kate Duckworth says.

Artwork on display in public

The last issue, and one of the most problematic for artists is that it is lawful to copy certain types of artwork that are on display in public. It is lawful under the Copyright Act 1994 to copy buildings, sculptures, models for buildings or works of artistic craftsmanship that are permanently situated in a public place.

Kate Duckworth points to the case of John Radford who designed three Greek-style sculptures that were made to appear to be sunk into the grass in Auckland’s Western Park.

Hallensteins put the images on a T-shirt without Radford’s permission. Aggrieved, he sued Hallensteins for using his artwork without permission. However, the case failed because section 73 of the Copyright Act 1994 allows for the taking of photographs of certain types of sculptures in public places.

“Authors do have moral rights and that is the moral right not to have your copyright work subjected to derogatory treatment,” Ms Duckworth says.

But it has to be specifically asserted and often publishing companies require the author to waive this right, and therefore the publisher can make changes or do things with your work that you might object to.

“But one example where it comes up with public artworks is where the work has been altered in the photograph or T-shirt, etc,” she says.

“One example was an art installation of a flock of geese in a shopping mall in Canada and for Christmas the mall owners put bows around the necks of all the geese, which the artist felt was a derogatory treatment of his work (Snow v The Eaton Centre Ltd. (1982) 70 CPR (2d) 105). I would imagine it would be quite an affront to see your copyright work, something that you have poured heart and soul and creativity into, to be commercialised in a way that you haven’t approved of, and has been monetised without your knowledge or permission, as in the Hall and Radford examples.

“It is nice that the general public can photograph things but if I was an artist, to see your work being used without even a request to do so and someone making money out of it, used in a way you don’t agree with, that would hurt.

“If you go into an art gallery you’ll often see signs saying ‘no photographs’ because it would be infringement of copyright to take a photo of someone’s paintings, drawings, etc, but I could take a photograph of Cathryn Munro’s sculptures outside the hotel opposite Te Papa and put them on coffee mugs and sell them, and that doesn’t seem fair.”

The Ministry of Business, Innovation and Employment (MBIE) released an Issues Paper on the review of the Copyright Act 1994 in November 2018.

“The Issues Paper provides an introduction to copyright concepts and our copyright regime, our proposed objectives for New Zealand’s copyright regime and potential issues with the way the copyright regime is working,” MBIE said on its website.

What if Banksy came here…

In a 2018 blog post, Simpson Grierson IP specialists Richard Watts, Raymond Scott and Rebekah Lockie take the example of perhaps the world’s most famous ‘graffiti’ artist and attempt to apply it to New Zealand copyright law.

“Street art is clearly gaining popularity in New Zealand as well. This February, Aotea Square hosted an exhibition of works by Banksy, a prominent British street artist and political activist, valued at around $40 million. So, if Banksy was to ever indulge in a little graffiti on our shores, how would our laws treat his work?” they ask.

“Under New Zealand law, to show the existence of copyright, the artistic work must be original and the author must have been in New Zealand at the time the work was created.

“The copyright owner enjoys the benefit of certain exclusive economic rights, including the rights, among others, to: copy the work; show the work in public; make an adaptation of the work; and issue copies of the work to the public.

“There are also moral rights, such as the right to be identified as the author or to not have work falsely attributed to them.

“The question of whether illegally-created graffiti is entitled to copyright protection, however, is yet to be put to the test on New Zealand soil. The Copyright Act 1994 is silent as to whether illegally-created works should be denied protection.”

The authors say that if such a case were to arise, section 225(3) of the Copyright Act 1994 might be referred to. That section preserves any defence to infringement that might exist on the grounds of public interest.

“There is significant debate as to whether such a public interest defence exists in copyright law at all. Regardless, it is hard to imagine circumstances in which using street art without the artist’s consent could be protected on the grounds of the public interest,” they say.

Taking action

Xoë Hall says if the threat of legal action gets an artist nowhere, negative publicity might spark action.

“If your letters are being ignored, go to social media and/or the news, that will get their attention. And if compensation would make you feel better about the situation, send them an invoice! Remember they are not only making money off your mahi, but they are paying others for the use of it, follow the chain.

“They may have purchased your work from stock images online, or paid someone to re-create it, paid someone to put it on their merch, distribute it, etc, etc, etc ... how far back does it go? You will be surprised how big a problem this actually is. I would love to see stock image companies stop selling photos of street art, they are one of the biggest issues in this art theft issue.”

And, if you are thinking that street art is ugly and damaging, Richard Watts and Raymond Scott raise the possibility that artists who haven’t permission to paint on walls could have bigger issues to contend with.

“Even if the New Zealand courts are happy to enforce a street artist’s copyright, these artwork owners could potentially risk criminal charges when establishing ownership of the copyright by having to admit that they tagged property without the consent of the owner.

“While these issues are all still relatively fresh, and don’t appear to be drying out anytime soon, we will have to wait to see how the New Zealand courts treat these street works and whether they deem them deserving of protection. We don’t buy the ‘it’s illegal so all bets are off’ line, though.”

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