Art Case Update – September 2023
Image: Stephen Thaler/Creativity Machine from Stephen Thaler v. Shira Perlmutter and The United States Copyright Office (1:22-cv-01564).
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 Paralegal Mia Schaumann report on the Australian Government’s proposed standalone legislation for Indigenous Knowledge protection, New Zealand’s new resale royalty scheme, the latest US decision on AI and authorship plus more.
Australia
Standalone legislation for Indigenous knowledge protection
The Australian Government has released its Final Report (Report) on the proposed standalone legislation for Indigenous Knowledge protection and commercialisation. This scoping study is a result of the 2020 Government Response to the House of Representatives Standing Committee on Indigenous Affairs Report which detailed the impacts of the misappropriation of First Nations arts and crafts by non-indigenous businesses.
As outlined in the Report, Indigenous Knowledge ‘encompasses all the tangible and intangible cultural heritage of First Nations peoples in Australia and is rooted in ancient and enduring connection to Country and its landscapes, waters, flora and fauna’ (IK). The standalone legislation seeks to mitigate the cultural harm caused by the circulation of art and craft which appropriates Indigenous Knowledge and traditional culture expressions (TCE) of First Nations peoples. The proposed legislation will be co-designed in collaboration First Nations peoples from state capital, regional and remote communities. To facilitate this process, an Indigenous Knowledge Co-Design Group will be established ‘with participation by Indigenous leaders, Elders, lawyers and cultural heritage experts drawn from different regions and language groups and with track records of relevant work and advocacy.’
The Report details several key recommendations. It endorses the granting of a new intellectual property (IP) right over IK and TCE. It recommends that the IP right be ‘communally owned, transmitted intergenerationally and not limited by any specific time period.’ The Report also recommends the prohibition of the commercial supply of goods or services featuring, or claiming to feature, traditional cultural expressions which are either not produced by First Nations people or supplied without adequate consent. This express prohibition will either form part of the standalone legislation or, in the alternative, be incorporated under Australian Consumer Law. To bolster the weight of the prohibition, the Report recommends instituting a mandatory disclosure regime for products deemed inauthentic.
The standalone legislation will be accompanied ‘by a complementary package of policies, resources, support and other reforms.’ These ancillary measures include the establishment of an agency which would assist in the negotiation of licencing arrangements and royalty payments, as well as the provision of education and support around the enforcement of the new cultural rights. Read the final report here.
The National Gallery of Australia releases its report on the provenance of First Nations artworks from APY Lands
The National Gallery of Australia (NGA) recently released its findings of an independent review into the provenance of 28 works by artists from Anangu Pitjantjatjara Yankunytjatjara Lands (APY) which are to be featured in their upcoming exhibition titled ‘Ngura Pulka – Epic Country.’ The review was undertaken in response to an investigation by The Australian newspaper which revealed allegations of white studio staff painting on Indigenous artist’s works at the APY Art Centre Collective (APY ACC) located in South Australia. The APY ACC functions as an assisted studio and commercial gallery space which facilitates professional and personal support services for APY artists.
The independent panel comprised of copyright expert and barrister, Colin Golvan KC, and Shane Simpson, a solicitor specialising in arts law. The purpose of the review was to determine ‘whether the artists in the Exhibition (the Artists) can be said to have freely exercised creative control over the creation of their Paintings, or whether the assistance provided by studio managers and staff improperly interfered with or usurped that control.’ The panel accepted that ‘Tjukurrpa [(the dreaming)] should only be depicted by people properly entitled to depict such cultural imagery under Indigenous custom and law’, and considered the provenance standards set out by the NGA’s internal policies.
In making their determinations, the panel was advised by Yhonnie Scarce, a Kokatha and Nukunu woman and artist and Maree Meredith, a Bidjara woman and Pro Vice Chancellor, Indigenous Leadership at the University of Canberra. The panel undertook interviews with 29 Artists and 10 APY ACC studio workers. Of the studio workers interviewed, a majority had a fine arts background. The panel determined that their roles were ‘consistent with the Artists’ claims of authorship’ which included preparatory tasks such as priming and stretching canvasses, mixing paints, providing background layer(s) to the works and offering additional assistance. As evidenced in the interviews given by both the Artists and the APY ACC staff, the studio workers ‘were there to serve the artists, and not the other way round.’ The ‘generic processes’ relating to the preparatory work undertaken by the studio workers roles was found to be ‘proper’ assistance and as such, did not amount to interference with the works.
Given the complexity of the Artists’ ‘highly recognisable styles,’ the important cultural duties implicit in the production of the works and the inability to detect imitation, the panel ultimately rejected any suggestions pertaining to ‘false claims of authorship in the Paintings.’ Upon weighing up the evidence, it was determined that 28 paintings met the Provenance Standards as set out by the NGA. Read our past coverage here and the full report here.
The National Gallery of Australia returns bronze sculptures to Cambodia
The NGA has repatriated three bronze sculptures to Cambodia. Originally purchased by the gallery in 2011, the return of the works comes as a result of a decade-long inquiry into the provenance of the artworks undertaken by the NGA and the Ministry of Culture and Fine Arts in Cambodia. Read more here.
Manchester Museum returns items of cultural heritage to the Anindilyakwa community
The Manchester Museum has formally returned 174 culturally significant artefacts to the Aboriginal Anindilyakwa community of Groote Eylandt, after retaining them for over 50 years. This repatriation comes as a result of years of collaboration between the museum, the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and the Anindilyakwa Land Council. Read more here and here.
IP Australia has issued new guidance for the classification of emerging technologies in trade mark submissions
In response to the growth in claims relating to NFTs, blockchain, the metaverse and virtual goods, IP Australia recently released its newly developed guidance for the classification of emerging technologies. This new framework seeks to clarify the categorisation of novel technologies which is required for trade mark applications. Read more here.
International
US court finds that an artwork generated by artificial intelligence cannot receive copyright registration
The United States District Court of Columbia has determined that US copyright law can only protect human-made works. In an application which was initially rejected by the U.S Copyright Office in 2018, computer scientist, Stephen Thaler, put down ‘Creativity Machine’ as the author of the artwork titled ‘A Recent Entrance to Paradise.’ The Creativity Machine is an AI tool which generates works of art. Thaler’s application was initially denied on the grounds that at the work lacked human authorship, an essential element for a valid copyright registration. Thaler subsequently filed a motion for summary judgment in the U.S. District Court of Columbia, arguing that U.S. copyright law does not restrict copyright to human-made works.
Under U.S. copyright law, copyright protects ‘original works of authorship fixed in any tangible medium of expression’ upon creation of a work if certain requirements are met. One of the requirements, as held by the Copyright Office, is the requirement of human authorship. By rejecting the original application, the Court concluded that ‘no valid copyright had ever existed in a work generated absent human involvement.’
The legal issue before the Court was ‘whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation.’ Thaler argued that the word ‘author’ is not defined under the Act and as such, is not limited to human authorship. Justice Beryl Howell found that whilst the Copyright Act of 1976 (Act) posits that copyright attaches ‘original works of authorship fixed in any tangible medium of expression, now known or later developed,’ and is thus adaptable to technological changes, this does not displace the requirement for human creativity. Howell observed that ‘[c]opyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand.’ In relying on ‘centuries of settled understanding’ the court found that authorship is presumptively and unquestionably human, resting on the historical foundations of copyright protection, which was established to provide incentivisation for human innovation and creativity. Given that Thaler’s application was for ‘a work created absent any human involvement,’ the motion for summary judgement was ultimately denied. Read the judgement here.
New Zealand introduces an resale royalty scheme for visual artists
The Resale Right for Visual Artists Bill has recently passed through the New Zealand Cabinet (Bill). The establishment of an resale royalty scheme for artists is required under Article 17.46 of the Free Trade Agreement between New Zealand and the United Kingdom of Great Britain and Northern Ireland. The scheme is now covered in the Bill and Resale Right for Visual Artists Regulations.
The proposed legislation seeks recognition and compensation for the creators of visual art on the secondary market. The purpose of the Bill is to ‘provide a right for eligible artists and successive right holders to receive a royalty on qualifying resales of original visual artworks; and to enable royalties to be administered in a way that acknowledges and respects the role of Māori as tangata whenua and provides culturally appropriate support to Māori artists.’
The amount of the royalty for a professional resale is stipulated to be 5% of the resale value .For a sale to be eligible for a royalty, it must:
meet the Bill's definition of visual art;
be created by or under the authority of a New Zealand citizen or resident
involve an art market professional, or be a resale to or from a publicly funded gallery, museum, archive, or library; and
be valued at over $1000 NZD .
In cases of unclaimed royalties, the funds will be transferred to a cultural fund managed by the collection agency, which will be set up to facilitate ‘career sustainability of the wider artistic community.’ The cultural fund will be set up in consultation with Māori to ascertain its precise structure and purpose.
Australia adopted a similar resale royalty scheme for artists in its Resale Royalty Right for Visual Artists Act 2009 (Resale Royalty Act), which also provides a 5% resale royalty for the commercial resale of an artwork which has a sale price of over $1000 AUD. New Zealand’s Bill and Australia’s Resale Royalty Act both expressly exclude buildings, dramatic, literary or musical works from the scheme. The schemes are different in regards to the duration of their respective resale royalty periods. In Australia, the resale royalty right extends for a period of 70 years after the artist’s death, whereas in New Zealand, the right is proposed to have a 50 year duration after the artist’s death.
Regarding next steps, Manatū Taonga together with the Parliamentary Counsel Office will be working on drafting the regulations before Cabinet submission later this year. The Bill is anticipated to be formally adopted in late 2024. Read more here.
Objects reported missing by the British Museum
The British Museum has released an official statement reporting that around 2,000 objects are missing, stolen or damaged from its collection. The thefts which are said to have occurred over a protracted time period, were brought to the Museum’s attention in 2021. The Museum is currently working with the Economic Crime Command of the Metropolitan Police to investigate this further. Read more here.
Stolen Van Gogh painting returned over three years later
A Van Gogh painting titled ‘The Parsonage Garden at Nuenen in Spring’ which was stolen from the Singer Laren museum in the Netherlands three and a half years ago has been returned. After passing hands in the criminal world, the work was left at the doorstep of art crime investigator, Arthur Brand’s house bubble wrapped in an Ikea bag. Read more here.
The Gagosian Gallery is not liable for profits derived from Richard Prince “New Portraits”
The U.S. District Court for the Southern District of New York has determined that the Gagosian Gallery is not liable for the profits derived from Richard Prince’s “New Portraits” series. Portraying screenshots of Instagram posts, photographer Donald Graham alleged that Prince infringed on his copyright in a photograph which was subsequently sold by the gallery. Read more here.
Auctioneer found guilty of fraud
Former Los Angeles auctioneer, Michael Barzman, has been found guilty of forging and falsely attributing 25 Jean-Michel Basquait paintings in 2012. The works were subsequently seized by the FBI from the Orlando Museum of Art where they were being displayed. The US District Court judge has sentenced Barzman to 500 hours of community service and 3 years probation. Read more here.
Court rules in favour of Maurizio Cattelan in copyright dispute
Artist Joe Morford’s copyright infringement claim against Maurizio Cattelan has been rejected by a Federal Court in Miami. Morford claimed that Cattelan ‘plagiarised and copied’ his work titled ‘Banana & Orange’ which comprised of a banana and an orange affixed to a wall with duct-tape. The court found that whilst Cattelan’s work titled ‘Comedian’ which featured a banana duct-taped to a wall, and Morford’s ‘Banana & Orange’ shared similarities, Judge Scola ultimately held that the evidence adduced was ‘insignificant and insufficient to support a finding of legal copying.’ Read more here.
Court allows culturally offensive murals to be covered
In a case pertaining to the concealment of racially insensitive works, the United States Second Circuit Court recently upheld a previous ruling which found in favour of the Vermont Law School. Contrary to the artist’s wishes, the school will be able to erect acoustic panels to permanently conceal artist Samuel Kerson’s mural portraying ‘animalistic depictions of enslaved African people.’ In the initial ruling, Kerson sought to rely on the Visual Artists Rights Act (VARA), arguing that concealing the work would amount to ‘a modification or destruction of the artwork in violation of the artist's right of integrity.’ The court subsequently found that ‘VARA does not protect against the concealment or removal from display of artworks,’ dismissing Kerson’s order for a permanent injunction. Read more here and here.
Bored Ape Yacht Club collectors commence legal proceedings
A group of collectors have commenced a class action lawsuit against Sotheby’s, alleging that that the auction house engaged in misleading conduct in the marketing of Bored Ape Yacht Club (BAYC) NFTs. The plaintiffs have contended that Sotheby’s artificially inflated the prices of the NFTs and ‘misleadingly created the impression that the market for BAYC NFTs had crossed over to a mainstream audience.’ Yuga Labs, the creators of the BAYC, in addition to a number of celebrities who endorsed the NFTs have been made co-accused. Read more here and here.
Michael Moebius brings legal proceedings against retail giant in copyright case
German artist, Michael Moebius, has commenced legal proceedings against online fast-fashion retailer, Shein, alleging that the multinational company violated his copyright in a number of artworks which were featured on Shein products. Read more here.
Götz Valien attributed as co-author of Paris Bar paintings
The Regional Court of Munich has ruled in favour of German artist, Götz Valien, in a case pertaining to the attribution of the infamous “Paris Bar” paintings which were originally credited to Martin Kippenberger. Valien filed a lawsuit against Kippenberger’s estate, alleging that he expressed creative licence when hired by Kippenberger to produce the works. Valien will now be recognised as co-author of the Paris Bar paintings. Read more here and here.
Art adviser faces fraud allegations
American art adviser, Lisa Schiff, faces two pending lawsuits made by individuals who engaged her services claiming that she embezzled over $3 million USD. The claims include breach of contract, conversion, fraud, conspiracy, replevin, and unjust enrichment. Read more here and here.