Art Case Update – July 2020
Guest Work Agency is your go-to source on art-related legal cases and legal reform presently taking place within Australia, as well as select cases internationally. In this story, our Paralegal Associate, Reetika Khanna, reports on the rejection of the Fake Indigenous Art Bill, an international copyright dispute against a theme park in Indonesia, and the dismissal of a copyright infringement claim against a German art collector who refurbished an American artist’s work.
Australia
Fake Indigenous Art Bill rejected by Parliament
The Senate Standing Committees on Environment and Communications released their report on the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill in May 2020. The Bill proposed to amend existing consumer law to make it an offence to supply or offer commercial goods for sale that include Indigenous cultural expressions, unless a transparent arrangement had been made with the relevant Indigenous artist or community. The committee members recommended against enactment, though they supported the general need to address the issue of inauthentic Indigenous style products sold as souvenirs. The committee recommended that the Commonwealth conduct extensive consultation with Indigenous communities and other stakeholders with a view to developing “a comprehensive, stand-alone legislative framework to protect the various complex forms of Indigenous cultural expression. The committee's view is that this broader objective is beyond the scope of the current bill.”
These recommendations were made despite the ‘Fake Art Harms Culture’ campaign launched by the Arts Law Centre of Australia, Indigenous Art Code and Copyright Agency in 2016, which has amassed extensive submissions from Indigenous artists and communities. A timeline of campaign milestones can be found here.
Australian Intellectual Property Report 2020 published
IP Australia’s 2020 Report covers the trends in trade mark and design registrations in 2019, in comparison to previous years.
Trade mark registration of distinctive signs such as words and symbols affords the trade mark owner protection for 10 years and can be renewed indefinitely. While the overall number of trade mark registrations reduced last year, the proportion of applications to file a trade mark in multiple countries, including Australia, via the international Madrid system, increased. As the Madrid system is almost exclusively used by non-Australians, this growth reflects the continuous increase in trade mark filings by non-residents since the 2000s. Trade mark applications filed overseas by Australians also increased, reflecting the continued growth in branded exports to China. The Australian applicant who registered the most trade marks in 2019 was the Coles Group, while the top Non-Australian applicants were Huawei Technologies, Apple and Samsung.
Design registration protects the overall visual appearance of a product for up to 10 years. Last year, the overall number of design registrations decreased, following a period of consecutive growth since 2014. The proportion of design applications by Australian residents, in comparison to non-Australians, has steadily decreased over the last decade. The applicants who registered the most designs in 2019 include fashion companies such as Louis Vuitton, Zimmermann and Kookai, and technology companies such as Apple and Phillips. IP Australia’s Designs Review Project found that design registration by Australian businesses is an indicator of more research and development (R&D) and more exports. In fact, businesses in design rights-intensive industries such as manufacturing and wholesale trade, spend 50 per cent more on R&D than the average Australian business, and are more active globally.
Updates on Australian cases of interest
Federal Court judgment for the ‘Fearless Girl’ copyright infringement case is yet to be released. For our previous update see our July 2019 case update here.
Federal Court trial for the Howard Arkley forgery case is to commence at the end of August. For our previous update see our July 2019 case update here.
International
Cady Noland copyright infringement claim against a collector who refurbished a sculpture dismissed
American artist, Cady Noland, claimed that a German art collector who had purchased her wooden sculpture, ‘Log Cabin Façade’ and had arranged for its restoration, infringed her copyright under the US Copyright Act and violated her moral rights under the US Visual Artists Rights Act (VARA). The collector arranged for a conservator to replace the wooden components of the work that had deteriorated, without Noland’s consent, and the altered work was then advertised for sale in the United States. Justice Paul Oetken of the United States District Court for the Southern District of New York dismissed Noland’s claim in June 2020.
Noland’s original claim against the defendant for destroying her original work, replacing the wooden logs, and displaying the reproduction, had been dismissed previously because domestic copyright laws generally do not apply extraterritorially, and these alleged infringing acts occurred in Germany. A defendant may be held liable for infringement that occurred abroad where the foreign infringement stems from a domestic act which independently infringes the copyright. However, Noland was unable to make out this argument as the attempted sale of the altered sculpture in the United States postdates the alleged reproduction in Germany and was not an independent violation of copyright. Purchasing the replacement wooden logs from an American manufacturer in preparation for the alleged infringement abroad also did not constitute an independent act of infringement.
Following the original claim that was dismissed, Noland’s amended claim sought to hold the defendant liable for infringements occurring domestically in the United States, namely the purchase of the replacement logs and marketing the altered sculpture for sale. Justice Oetken held that distributing photos of the work in an attempted sale constituted fair use and did not infringe copyright. The use of the photos was transformative as the purpose was to provide information to legitimate purchasers, rather than for the artistic purpose of the creator’s original work. Further, the dissemination of the photographs did not adversely impact the market for the original work.
Justice Oetken also held that marketing the altered sculpture did not violate Noland’s moral rights under VARA because the creation of the original work predates the start date of protection under the statute. Noland had argued that she created a derivative work entitled to VARA protection when she permitted the collector to stain the sculpture, which was after the start date of protection under the statute. This argument was rejected. Justice Oetken held that the author of such a derivative work, and therefore the holder of any rights under VARA, would be the collector as the idea to stain the work originated from him, and he tangibly expressed this idea by carrying out the staining.
Estate of Chris Burden files copyright infringement claim against an Indonesian amusement park
In June 2020, the Estate of Chris Burden filed a copyright infringement claim against Henry Husada, the owner of an amusement park in West Java called Rabbit Town, with the Central Jakarta District Court. Since opening in 2018, Rabbit Town has capitalised on the “selfie tourism” trend by featuring large-scale art installations. The claim against Husada alleges that an installation at Rabbit Town, ‘Love Light’, is a copy of artist Chris Burden’s public art installation, ‘Urban Light’, which features rows of street lights arranged in a grid-like formation at the entrance to the Los Angeles County Museum of Art.
The Estate is requesting compensation for both material and immaterial losses, the removal of the ‘Love Light’ installation at Rabbit Town, and a public apology in national and international newspapers and on social media. Executive Director of the Chris Burden Estate, Yayoi Shionoiri, commented: “Copyright protects artists’ rights. It is an important legal tool that can protect and amplify an artist’s legacy. The Chris Burden Estate intends to vigorously assert protection over Burden’s artistic creativity”.
The first hearing for the case was held on 18 June 2020.
More international cases of interest
Artist Pat Lipsky files claim against Spanierman Gallery and Artspace, an online art sales platform, for posting distorted images of her work that have been digitally lightened beyond recognition. Read more here.
International operation against art and antiquities trafficking results in 101 arrests and over 19,000 works recovered across 103 countries. Read more here.
Lawsuit filed against Christie’s for the sale of the ‘Gilgamesh Dream Tablet’, a stolen ancient artefact. Read more here.
Modigliani expert files copyright infringement claim against the Wildenstein Plattner Institution for intending to publish his catalogue raisonné research online for free. Read more here.
United States Court rules that auction houses cannot sue foreign governments for intervening in the sale of illicit goods, even if there is no evidence to prove the work was traded illicitly. Read more here.
Facebook bans the sale of historic artefacts on its platform, including all rare items of significant historical, cultural or scientific value. Read more here.
United States Court rules that the depiction of Humvees in the ‘Call of Duty’ video game does not constitute trade mark infringement as the use of the trade mark has artistic relevance to the work and is not misleading. Read more here.
United States Court rules that tattoo artists grant non-exclusive licenses to clients to use their tattoos as part of their likeness, barring certain copyright infringement claims. Read more here.
Indian police charged a man who attempted to sell the world’s largest sculpture, ‘Statue of Unity’, online for $4 billion as a COVID-19 fundraiser. Read more here.
United States Court rules that Instagram users who post images on public accounts effectively grant a sublicense which allows others to embed public posts onto a website without infringing copyright. Read more here.
Image credits: Yayoi Shionoiri’s side by side comparison of ‘Urban Light’ and ‘Love Light’. On the left: Chris Burden, Urban Light (2008) (C) Chris Burden. Licensed by the Chris Burden Estate. Images courtesy of Yayoi Shionoiri. See Instagram post featuring images here (@yayoi_shionoiri).