Art Case Update – February 2024
Image: Installation view of Jordy Kerwick’s exhibition at TW Fine Art, Micro Macro Paintings of Love & Hate, 2019.
Guest Work Agency is your go-to source on art-related legal cases and law reform in Australia, as well as select cases internationally. In this story, our Director and Founder, Alana Kushnir and Paralegals Mia Schaumann and Eve Rayner report on the charging of an Australian gallerist with 9 counts of stealing, the Australian Government’s AI regulation update, the New York Times lawsuit against OpenAI and more.
Australia
Australian gallerist charged with 9 counts of stealing
Tove Langridge, owner of TW Fine Art gallery in Brisbane, has been charged by Queensland Police with the criminal offence of stealing.
Guest Work Agency has been acting for a number of artists in relation to the matter.
In December 2023, Queensland Police executed two search warrants and seized numerous artworks which had been consigned to TW Fine Art. Langridge was charged with 9 counts of stealing under section 391 of the Queensland Criminal Code, in relation to selling consigned artworks and not remitting any sales proceeds to the artist owners.
Under section 391 of the Queensland Criminal Code 1899, a person commits stealing if they “fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use anything capable of being stolen”, and guilty of a crime which is liable to imprisonment for 5 years.
In a recently published article in The Art Newspaper, Guest Work Agency Director and Founder Alana Kushnir explained why the charging of Langridge is significant, being one of the first examples in Australia in which police have charged a gallery owner for this type of conduct.
Langridge is due to appear before Southport Magistrates Court in Brisbane on 27 February.
AI regulation update – the Federal Government’s interim report
In late January the Australian Government published its interim findings regarding responsible AI. The consultation received over 500 submissions, predominantly surrounding the safe use of AI.
The interim report has found up to 10 existing legislative frameworks will need updating in the light of an AI context. This includes copyright law, in regard to where copyright-protected subject matter is used in the training of generative AI models. The report also mentions the need to update the Australian Consumer Law, to expand the misleading and deceptive conduct provisions to cover the making and distributing of deepfake technology.
The report states that there is significant work to be done to reform and expand privacy, intellectual property, competition, and consumer law to regulate AI. It also recommends an outcomes focused approach, with proactive measures such as testing and transparency likely to be adopted. The Federal Government will continue conversations and consultations before the final report is published later this year. Read the interim report here.
Charity law update comes into effect
New legislation relating to entities with Deductible Gift Recipients (DGR) status has come into effect. DGR status allows an entity to claim tax deductible gifts and contributions made by the public, which facilitates philanthropy and provides support to the non-for-profit sector.
Prior to the reforms, the DGR categories were administered by various government agencies. Legislative amendments to the Income Tax Assessment Act 1997 have transferred the administration of four unique DGR categories to the Australian Taxation Office (ATO), simplifying the DGR process and creating consistency between the categories. If your charity is listed on the Register of Cultural Organisations, this means that your DGR status will now be endorsed by the ATO.
If you are a registered charity and want to know more about how these changes affect you, please contact us at info@guestworkagency.art and we can assist. Read more here and here.
Changes to privacy law flagged
Upcoming changes to the Privacy Act 1988 (Cth) will impact small businesses and charities who have an annual turnover of $3 million or less. Previously, these entities were exempt from Privacy Act obligations, as it was considered that small businesses were reasonably low-risk for privacy breaches. In light of changing technology, the government has agreed in-principle that this provision will be removed, so that all businesses must comply with privacy legislation regardless of their annual turnover. In the short term, any small business who engages with facial recognition technology, or biometric data are excluded from the exemption, as are businesses who have obtained consent to trade in personal information.
The Government has also outlined specifications regarding personal information used in substantially automated decisions which have a legal, or otherwise significant effect on individual’s rights. This will predominantly be applicable to government entities who may be using AI. Individuals will now be able to request an administrative review to see how their personal information is used to make substantially automated decisions.
To help entities with these new updates, the Government agrees in-principle to produce standardised templates for privacy policies and notices which businesses can voluntarily adopt. The proposed templates will be concise, clear and up to date, avoiding complex language and lengthy legalistic terminology to ensure that individuals are more likely to read and understand their privacy rights. Read the full report about upcoming changes here.
If you are a small business concerned about how the changes to privacy law will impact you, please contact us at info@guestworkagency.art and we can assist you.
International
The New York Times sues OpenAI for copyright infringement
On the 27th of December 2023, The New York Times (The NYT) commenced litigation against Microsoft and the owner of ChatGPT, OpenAI.
The NYT alleges that OpenAI accessed their content to train AI without authorisation, after negotiations for content licencing failed, with instances of almost identical articles being produced by ChatGPT. The NYT claims that articles, guides, reviews and opinion pieces were unlawfully used to train AI, citing millions of alleged copyright infringements in the process. The newspaper stated that OpenAI “engaged in wide scale copying from many sources, [and] gave Times content particular emphasis”.
OpenAI has said in a statement that they were surprised at the allegations, and published a blog post which expressed their view that the allegations are without merit. OpenAI may argue that the newspaper material is ‘fair use’, under the Copyright Act of 1976 (Title 17) section 107, which sets out the framework for determining fair use as an exception to copyright infringement. Considerations includes the purpose and character of the use, as well as the commerciality of the derivative work for OpenAI – all things the court will look to when examining the case.
The NYT and other newspapers such as The Guardian had previously blocked OpenAI from using content to train their technology, yet this did not extend to content already used in the training process. OpenAI admitted in 2023 that it would be “impossible” to continue to build their products without using copyright-protected works. Read more here.
A U.S. appeals court rules that a Madrid museum can keep a nazi-looted Pissarro painting
An appeals court in the United States has found that Spanish law should apply over California law, with respect to the ownership of a painting held by the Thyssen-Bornemisza Museum in Madrid, which was looted by the Nazis during World War II. Spanish law deems the institution can retain the work if it had been owned for three years in good faith and in the absence of any ownership disputes, whilst Californian law states that a holder of stolen property does not acquire rights to the work until the statute of limitation expires.
The artwork was taken by Nazi forces in 1939 from Lilly Neubauer, and her grandson, Charles initially brought proceedings for its return in 2005. Whilst it was non-contentious that the painting was stolen by the Nazi’s, the Court’s reasoning behind the use of Spanish law resided in the fact that Spanish law would be significantly impaired in comparison to Californian laws. Under Californian law, the party who applies to use foreign laws must show that it is materially different from California law – otherwise Californian law will apply and be used by the courts.
Spain is a signatory to the Washington Conference Principles on Nazi-Confiscated Art, which encourages restitution of art to its pre-war owners or heirs. Interestingly, Circuit Judge Consuelo Callahan noted in obiter dictum that the Thyssen-Bornemisza Museum should have given back the artwork to the Neubauer family to honour its country’s commitment to the Washington Principles. Read more here.
Sotheby’s wins trial brought by Russian billionaire Dmitry Rybolovlev
Russian oligarch Dmitry Rybolovlev has lost his trial against Sotheby’s, after accusing the auction house of defrauding him of millions of dollars. Rybolovlev claimed that he paid inflated prices for artworks brokered through Swiss art dealer Yves Bouvier, who was aided by Sotheby’s during transactions. Sothesby’s has maintained that it knew nothing of the conspiracy and therefore was not liable to Rybolovlev’s claim, which the court agreed with in its decision handed down on 30 January 2024. Read more here.
Italian court sides with Getty Museum in export dispute over Bassano painting
Italy’s highest administrative court has ruled that a painting by the late Renaissance Italian artist, Jacopo Bassano, can remain at the J. Paul Getty Museum in Los Angeles, concluding a complex legal dispute over the artwork’s export from Italy in 2018. Read more here.
The UK fails to reach an agreement on voluntary code of practice for artificial intelligence regulation
The UK Intellectual Property Office (UKIPO) was unable to reach a consensus on the proposed voluntary code of practice on copyright and generative AI. Initially proposed by the UKIPO in 2023, the code seeks provide clarification on how AI will be regulated. Specifically, the working group made up of key stakeholders was unable to agree on the use of copyright protected works in the training generative AI models. More here and here.