Guest Work Agency comments on legal issues regarding MONA’s fake Picasso’s
Ladies Lounge. Photo Credit: Mona/Jesse Hunniford. Image Courtesy MONA Museum of Old and New Art, Hobart, Tasmania, Australia.
Guest Work Agency Founder and Director Alana Kushnir has spoken to ABC News about the legal issues which may arise from the Picasso replicas displayed at the Museum of Old and New Art – MONA as part of the Ladies Lounge installation by artist Kirsha Kachele.
The article, titled Faked Picasso ruse another publicity coup for Mona and Kirsha Kaechele, but some are unimpressed explores the ethical and legal implications of the artworks. Kaechele admitted the artworks were replicas painted by her and a friend in a blog post titled “Art is Not Truth: Pablo Picasso”, published on the MONA website on 10 July 2024, after receiving enquiries from a journalist and the Picasso Administration, which represents and administers the Picasso Estate, including image reproduction rights.
WHAT ARE THE LEGAL IMPLICATIONS OF COPYING AND DISPLAYING AN ARTWORK BY PICASSO?
Alana told ABC News journalist Eliza Kloser that the fake works "could potentially be misleading or deceptive conduct" if “visitors to the museum were under the belief they were seeing authentic Picassos." This relates specifically to Australian consumer law, which provides that businesses must not engage in trade or commerce that is likely to mislead or deceive.
In regards to the issue of copyright, Alana stated the laws are "not so straightforward", and "it would be challenging to bring those sorts of claims."
Under Australian copyright law, a painting style cannot be protected by copyright, only its expression in a material form. The copyright infringement question depends on how much of the original work by Picasso has been taken. As Kaechele noted in her statement on MONA’s website, Picasso himself took inspiration from the figures in Manet’s Le Déjeuner sur l'herbe, transferring some of Manet’s stylistic qualities across to his own original works.
There are also defences to copyright infringement which could be considered, such as parody or satire. By hanging the fakes in the Ladies Lounge, Kaechele could arguably be seen as satirising the importance of Picasso, who is widely known to have had many female lovers during his lifetime, and seeking to spark conversation around the value of art.
WHAT HAPPENS NOW?
In a further article published by ABC News, the Picasso Administration has said that it considers “this matter is now closed”, after issuing a ‘please explain’ to MONA, with the gallery subsequently taking the paintings down.
Alana acknowledges the “interesting part of what Kirsha is doing, she's kind of playing with the boundaries of the law, and forcing us to really think about how, and if they can be applied in practice.”
MONA and Kaechele are currently appealing the April TASCAT decision which found that the Ladies Lounge discriminated against male visitors. Following the TASCAT decision, the installation was dismantled and the Picasso replicas were rehung in a female bathroom. The appeal will be heard in the Tasmanian Supreme Court later this year.
Guest Work Agency is a boutique art law and advisory firm based in Melbourne, but is international in reach. It is the first dedicated art law practice in Australia, working with artists, collectors, galleries, arts organisations, art fairs and art tech start-ups.
For more information contact us at info@guestworkagency.art.