Art Case Update - May 2024
Kirsha Kaechele Ladies Lounge, Surpeme Court. Photo Credit: Mona/Jesse Hunniford. Image Courtesy Museum of Old and New Art, Hobart, Tasmania, Australia.
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 update, our Director and Founder, Alana Kushnir and paralegal Eve Rayner report on the anti-discrimination case concerning MONA’s “Ladies Lounge”, the introduction of reciprocal resale royalties for Australian artists and more.
Australia
MONA defends ladies-only lounge against anti-discrimination case brought by male visitor
In April, Museum of Old and New Art (MONA) was taken to Tasmania’s Administrative and Civil Tribunal regarding their ‘Ladies Lounge’ exhibit. Artist Kirsha Kaechele’s interactive installation only allows entry to female visitors, exclusively employing male wait staff to serve champagne.
A male visitor who was denied entry into the lounge, subsequently commenced proceedings under section 26 of Tasmania’s Anti-Discrimination Act 1998 (Tas) (the Act), requesting that the space be accessible to all. The law allows for discrimination to be claimed under a program that promotes equal opportunity for a group of people who are disadvantaged. The Equal Opportunity commissioner referred the matter to the Tasmanian Civil and Administrative Tribunal (TasCAT).
In the Tribunal hearing, Kaechele explained that the “the very raison d'être of the Ladies Lounge is discrimination on the basis of gender”, and recounted historical gender segregation restricting entry examples, such as women being unable to drink at public bars until the 1970’s. She contended that whilst female-only clubs existed, they “did not represent the same concentration of power” of their male counterparts. On this basis, the Ladies Lounge was intended to paradoxically discriminate for an artistic purpose, with Kaechele stating “section 26 applies in spades” providing “a peaceful space women can retreat to.”
TasCAT handed down its decision last month and found the artwork to be discriminatory. Section 26 of the Act seeks to “permit a positive response to inequality” which the Ladies Lounge had not produced. Tribunal Member Grueber highlighted in his judgement that “the Act does not permit discrimination for good faith artistic purpose”. Furthermore, the work did not make it apparent “how restricting appreciation of the art within the space to women promotes opportunity for female artists to have their work displayed”. While Member Grueber accepted that the “Ladies Lounge would cease to have the artistic character that defines it if men are permitted entry, ” they found that that persons who did not identify as ‘ladies’ had to be admitted entry within 28 days of the decision.
In early May, MONA announced they will appeal the decision in the Tasmanian Supreme Court in a lengthy interview with Kaechele. MONA’s appeal intends to argue that the Ladies Lounge is eligible for exemptions under section 27 of the Act.
Read the full TasCAT judgement here. Read Kaechele’s MONA interview here.
International resale royalties introduced for Australian artists
The Australian Government recently announced the 17 countries that will share reciprocal resale royalty rights with Australia. Amendments to the Resale Royalty Right for Visual Artists Act 2009 will allow for these reciprocal rights to be established with participating countries. This right means that Australian artists will be legally entitled to receive royalties where their eligible works are resold in participating jurisdictions, and reciprocally for artists internationally whose work is resold in Australia. Countries with reciprocal arrangements include the UK, Italy, Portugal, Denmark and France.
These changes will affect works resold after 31st March 2024 with overseas resales to be governed by each foreign country’s resale royalty laws. In Australia, the resale royalty scheme applies to original works of visual art and commercial resales artworks where the sales price is over AUD $1,000.
Importantly, in Australia artists need to be registered with the Copyright Agency to receive international royalty payments. View the Copyright Agency eligibility criteria and reciprocal countries, here.
Development of stand-alone Indigenous Cultural and Intellectual Property legislation in progress
The Australian Government has pledged $13.4 million over four years to support the introduction of stand-alone legislation which will protect Indigenous Cultural and Intellectual Property and seeks to address concerns related to fake art, merchandise, and souvenirs. We previously covered the introduction of this legislation in our September 2023 Art Case Update.
The Government will soon be opening expressions of interest for the partnership with First Nations experts to guide the development of the legislation, as well as holding community engagement sessions both in person and online between March and May of this year. Written submissions will be open until the 15th of June 2024. To find out more, visit the Department’s website.
If you're interested in making a written submission, Guest Work Agency would be happy to assist. Get in touch at info@guestworkagency.art.
IP Australia replaces existing list of goods and services classes with the Madrid System
IP Australia has updated their goods and services categories for trade mark registration with the international Madrid Goods and Services list.
The Madrid System offers more choice in goods and services, making it easier to obtain consistent protection of trade marks for certain goods and services in Australia and internationally via the World Intellectual Property Organization – WIPO Madrid system.
This update also improves IP Australia's online search tools, with the aim to help users choose the most accurate goods and service description for their application.
If you're considering whether to register a trade mark in Australia or internationally, Guest Work Agency would be happy to assist. Get in touch at info@guestworkagency.art.
Read more about the Madrid Goods and Services list, click here.
Gwaegal Spears repatriated to the La Perouse Aboriginal Community
In 2023 Trinity College and the Museum of Archaeology and Anthropology (MAA) agreed to return four spears to representatives of the La Perouse Aboriginal Community. The four spears were officially repatriated on 23rd of April, received by direct descendants of the Gweagal people who crafted the spears 250 years ago.
The spears, taken by James Cook and Joseph Banks during first encounters between the HMS Endeavour and the Indigenous peoples of Kamay (Botany Bay) were gifted to Trinity College, Cambridge in 1771. Agreement to repatriate the spears came after discussions for loans in museums across Australia in 2015 and 2020. Ongoing discussions included representatives from La Perouse Local Aboriginal Land Council, the Gujaga Foundation, the Gweagal people and the Dharawal Nation.
The Honourable Linda Burney MP, Minister for Indigenous Australians told the National Museum of Australia, “Bringing our history back home provides an opportunity for Indigenous and non-Indigenous Australians, young and old, to build a greater understanding of our shared national story.” Read more here.
International
UK’s Court of Appeal rules on copyright ‘originality’ test
In THJ Systems Ltd & Anor v Sheridan & Anor [2023] EWCA Civ 1354, the parties brought proceedings in the UK Court of Appeal (Civil Division) in regards to whether copyright had been breached in certain graphic displays.
As a preliminary question, the Court considered whether Mr Andrew Mitchell’s educational software was an ‘original’ work which could attract copyright protection, as defined under section 1(1)(a) of the Copyright, Designs and Patents Act 1988 (UK). Clarification of the legal test for originality under UK legislation was required. The trial judge was found to have erred in using the ‘skill and labour test’ to determine originality, which has origins in UK law. Arnold LJ confirmed in the appeal that the correct test was the “author’s own intellectual creation” test, being objective and reflecting on the statutory requirement of s 4(1)(a) of the Copyright, Designs and Patents Act. Using this test, the Court found that graphic works were still original artistic works “irrespective of [their] artistic quality”. On this basis, Lord Justice Arnold dismissed the appeal to the effect that the software created by Mr Mitchell and used by Mr Sheridan’s company was protected by copyright.
However, it is unclear whether this finding will stand. The originality test used by Arnold LJ has origins in EU-derived legislation but as a result of the The Retained EU Law (Revocation and Reform) Act 2023, UK courts are no longer automatically bound by retained case law from European counterparts. Due to the new legislation, UK Courts in the future may choose to revert back to the ‘skill and labour test’ and depart from their European harmonisation regulations if a factually similar case arises. Read the full judgement here.
Artistic value may prevent protection of the Vespa shape as a trademark in Italy
The Italian Supreme Court recently issued a decision addressing whether the Vespa shape, already protected under copyright, was precluded from registration as a 3D trademark. According to the Court, Vespa’s unique scooter shape was one of many attractive features to consumers, influencing their purchases. However, under Italian law, the “substantial value” of the Vespa shape precludes trade mark registration.
According to article 9(1)(c) within the Italian Intellectual Property Code, article 7(1)(e) European Union Trade Mark Regulation and article 4(1)(e) of the Trade Mark Directive, absolute grounds for refusal of trademark registration include signs which “exclusively” consist of a shape providing substantial value to goods. The Supreme Court determined that for a shape to have substantial value, it is not necessary for the product shape to be the sole reason for purchase.
The Court concluded that the Vespa shape had substantial value insofar as it played a key role in consumer’s choice in buying the product. As a result, the 3D shape is therefore unable to be registered as a trademark in Italy. This decision could have a ripple effect in Europe for other large companies who rely on the shape of their product for market value.
Gallery employee is fired after putting his own work on display
Munich’s Pinakothek der Modern has terminated the employment of one of its technical service employees after he hung his own work in the gallery. The now former employee drilled two holes in the wall and hung his art, hoping to achieve his artistic breakthrough as visitors passed through the gallery. After supervisors were alerted to the work being on display, it was taken down and the employee’s contract terminated. The Pinakothek der Modern subsequently filed a police complaint; police confirming with Bavarian newspaper Süddeutsche Zeitung that they were investigating damage caused to property. Read more here.
Getty Museum’s ‘Victorious Youth’ statue ordered to be returned to Italy
The European Court of Human Rights has ended a 14-year legal battle between Italy and the J. Paul Getty Museum, deciding that the ancient Greek statue be returned to Italy. Believed to have been created between 300-100 BCE in Greece, “Victorious Youth” was in transit to Italy when its carrier sunk to the bottom of the Adriatic Sea. Italian Fishermen found it in international waters in 1964.
Italy claims that the statue was illegally smuggled out of the country, and had previously attempted to reclaim the statue from a German art dealer. That dealer subsequently sold the statue to the Getty Museum in 1977 for approximately $4 million USD.
The Court referenced Italy’s ongoing fight for the statue, stating in their decision: “owing, in particular, to the Getty Trust’s negligence or bad faith in purchasing the statue, despite being aware of the claims of the Italian State and their efforts to recover it, the confiscation order had been proportionate to the aim of ensuring the return of an object that was part of Italy’s cultural heritage.” The judgement concluded that Italy had “reasonably demonstrated that the statue had been part of Italy’s cultural heritage and also had legally belonged to [it].”
However, as the United States are not a party to the European Court of Human Rights, it is unclear whether they will respect the Court’s non-binding decision. Read the full judgement here.
Painting stolen from Christ Church Picture Gallery recovered in Romania
A Salvador Rosa painting stolen from Christ Church Picture Gallery, Oxford, UK has been recovered by British Police and Romanian authorities. A Rocky Coast, with Soldiers Studying a Plan, a 17th century landscape painting, was stolen in a heist along with two other works in March 2020. Two other works, Anthony van Dyck’s A Soldier on Horseback (c.a. 1617) and Annibale Carracci’s A Boy Drinking (c.a. 1580) are still missing, however authorities know they were also on sold on Romania. Together, these works are estimated at a total value of $12 million USD.
In a statement, Christ Church Picture Gallery thanked police saying they were “thrilled” to have Rosa’s work returned, and hopeful that the other two works will also be recovered at some point. Read the full story here.
French regulator fines Google €250 million for training AI using copyrighted material
France’s competition regulator, the Autorité de la Concurrence has fined Google for training it’s Bard AI (renamed as Gemini in February 2024) relating to copyrighted news articles. The company used news materials without providing an ‘opt-out’ availability to companies as well as failing to provide sufficient information regarding remuneration. In some cases, Google failed to inform agencies of their intention to use the copyrighted material. This fine follows a 2022 binding settlement where Google agreed to comply with good faith negotiations concerning news outlets, notifying news agencies and the Autorité when content was being used and for what, as well as being transparent about remuneration. The recent findings detail how Google failed to comply with these requirements on several occasions.
Google has agreed to pay the fine, a significant outcome, as it is one of the first instances where companies have been held accountable for infringing copyright whilst training AI. Read the findings of the regulator here.