Sculptures on T-shirt not a breach of copyright

[Merlion]

Interesting legal position on putting photo images of an artist's public sculptures and printing them on your T-shirt for sale. I suppose it applies to printing the images as pictures and selling them.

How about printing for sale photos of an artist's sculptures in galleries or indoor exhibitions? Or photos of an artist's drawings and paintings in such places?

Ponsonby sculptures on T-shirt not a breach of copyright (http://www.stuff.co.nz/stuff/0,2106,4006084a12855,00.html)

26 March 2007

In the High Court at Auckland recently, Justice Keane presided over the final resolution of the claim by Auckland sculptor Mr Radford against the fashion chain Hallensteins for using images of his sculpture on a range of T-shirts. The claim attracted some attention from the media, but was resolved against him first in the District Court, and then in the High Court, with Justice Keane upholding the District Court's dismissal of the causes of action.

Underlying Radford v Hallensteins (22 February 2007, High Court, Auckland, CIV 2006-404-4881) was Radford's view that his sculpture was not a commodity which could be trivialised by an image on casual clothing. In a market where the T-shirt carries a range of decoration from political slogans through to images to raise awareness for issues such as breast cancer, the use of such images might need some clarification.

Radford claimed Hallensteins had breached his copyright in the sculptures, reducing by half the value of his unsold casts. ..... Thirdly, he claimed a breach of his moral rights. Hallensteins had, he claimed, set his sculptures on the T-shirt in a context that was incongruous, distorting, and derogatory.

The approach of the District Court Judge and of Justice Keane, however, was that because the original sculptures were on display in Western Park, in the Auckland suburb of Ponsonby, they were on display in a public place. It goes without saying that in doing so, the images could be photographed and reproduced. The choice to put the works in a public place really invites the possibility of images being taken. ....

The issue of reproduction of an artist's work is often difficult. If the image were an outside painting, then, on the face of it, it is a two-dimensional image, but a photograph or graphic image may duplicate it closely. The answer seems to be on the principle that if the art is on display publicly, then reproduction cannot be prevented, which is realistic.....

You may, therefore, while on your tour of Europe, and even the sculpture exhibitions on Waiheke Island, continue to take photographs, and, if inclined, you may copy them onto your T-shirt as a trophy of your holiday.

[John N.Z.]

Hi

I saw the comment re the NZ Lawyer article and have to respond


New Zealand's Copyright law has a small loophole that it appears Hallensteins Clothing ( with the help of their lawyers ) have been able to use to avoid facing the Copyright part of my claim against them. The article in NZ Lawyer is so incorrect that I have written a letter highlighting the mistakes and adding corrections, this will be published in the next issue Of NZ Lawyer.

here it is included below, Please distribute it as widely as you wish

Re; Ponsonby sculptures on T–shirt not a breach of copyright.

Mr LaHatte stated “Keane J presided over the final resolution of the claim by Auckland sculptor Mr Radford against the fashion chain Hallensteins for using images of his sculpture on a range of T-shirts.”

Where Mr LaHatte got the term "final resolution" from is a mystery to me. Whilst the copyright claim was struck out by the Judge, the Moral Rights Infringement and Fair Trading Act claims are still being pursued by me at the Auckland District Court.

The issue on the strike out argument was whether section 73 of the Copyright Act 1994 should be read literally. If so, it would excuse only the copyright infringement by two dimensional reproduction of the ( publicly and permanently situated ) three dimensional sculptures and would not excuse the reproduction of the underlying works and drawings which are in private storage. The alternative approach, and the one the Judge preferred, was to read further words into the section to provide a defense to any copyright infringement by a two dimensional reproduction. This had never been tested in New Zealand before.

From my perspective, this argument is about whether the copyright act and section 73 should allow commercial exploitation of permanently situated public works of sculpture and their underlying works ( maquettes, sketches plans etc which are stored privately ) via the production and sale of any number of 2 dimensional images of such sculptures and their underlying works by anyone to anyone. I think not. Why should clothing companies who sell T - shirts or anyone else be able to profit from an artist's hard graft?

Mr LaHatte also claims that "you may, therefore, while on your tour of Europe, and even the sculpture exhibitions on Waiheke Island, continue to take photographs, and if inclined, you may copy them onto your T-shirt as a trophy of your holiday".

It seems clear from my latest gripping read of the Copyright Act, that those who put photos of sculptures from the Waiheke Island exhibition on T - shirts could be the target of legal action from the artists concerned.

I believe Mr LaHatte is referring to the Sculpture on the Gulf events. These exhibitions involve display of multiple robust sculptures made by various artists which are displayed temporarily in outdoor locations on the Island. At the end of two weeks, most if not all works are removed from the public locations ( some are not even publicly located at all as they are located on private land during the exhibition ). These are temporarily sited sculptures some of which are in a public place, so section 73 of the Copyright Act can provide no protection from copying these works.



I’m fighting this case to protest about what I feel has been the careless commercial exploitation of my art work and damage to my reputation. I am seeking damages in relation to this.

I believe that having cheap, distorted screen prints of the largest works I have ever created, appear on an unknown number of $16.95 T - shirts sold around New Zealand by Hallensteins, has put into action a chest mounted billboard campaign associating my largest work ever with the Hallensteins' Planet 8 brand.

The Planet 8 brand appears printed on the T- shirts beside the images of my sculptures. Such association upsets me greatly, I was not asked and wouldn’t agree to such association with such clothing even if I was asked and offered licensing fees.

This is wrong. The fact that our Copyright Act has let this case partly slip through in favour of commercial exploitation of public sculpture disappoints me greatly.



I trust this clarifies and corrects your earlier article.



Yours sincerely





John Radford Artist

[Araich]

Welcome John.

Firstly, I am disappointed that some server trouble has caused the original thread to be lost. Thanks Merlion for restarting it (or did we simply go back in time?). I hope the others who had posted will return. It really sucks when you put time into a comment and it is simply eaten by the internet.

My read on this? I am appalled. It is an embarrassment to the New Zealand government. Essentially a poorly written line in their Copyright Act (http://rangi.knowledge-basket.co.nz/gpacts/public/text/1994/se/143se73.html) seems to suggest that a sculpture permanently displayed in public is freely available for reproduction commercially, no strings.

This is grossly unfair.

Equally alarming, it seems that a similar 'loop-hole' exists here in Australia: http://www.artslaw.com.au/ArtLaw/Current/06ProblematicPublicSculpturesProvisions.asp

John, have you seen this?

[Araich]

PS check out John's work here: http://www.johnradford.co.nz/

[Julianna]

I'd be interested to read the NZ copyright act (I did a quick Google search, but was short of finding the actual document...just many references to it). It seems from the article that the court's decision was based primarily on the wording of the act and not the intended application of it.

This whole "... they were on display in a public place. It goes without saying that in doing so, the images could be photographed and reproduced" statement is misleading, because having the sculptures photographed and reproduced by tourists is one thing---having them photographed, reproduced and sold and/or republished is another. There is a big difference between a public sculpture appearing in the vacation slide-show someone is showing their family and friends and a public sculpture being repackaged, without permission, as the focus of another product.

The test, I think, is what would happen if the company hadn't taken a picture of a public sculpture but, say, a billboard for Coke and made THAT into a t-shirt and sold it. Or if they had taken a picture of a sculpture of a Disney character and put that on a t-shirt. I would bet good money on the fact that Hallensteins would very quickly be in much trouble.