As the value of digital artwork grows, artists fear the ability to split the copyright to their artwork in a relationship may undermine original creators’ rights
Owning copyright in the digital age may be one of the most lucrative hustles.
In a world where a viral internet meme of a dog can be sold for an eye watering US$4 million as a non-fungible token, the limit to making money from recreations of original artwork if you own copyright could be virtually endless.
And that’s why traditional artists, art galleries and buyers are worried.
A High Court judgment revealing the copyright on artist Sirpa Alalääkkölä’s work produced during her marriage could be shared as relationship property with her ex-husband after their separation caught some in the art community off guard. The judgment is an appeal of an earlier decision by the Family Court that ruled in Alalääkkölä’s favour stating that the copyright in the artworks belonged solely to her.
Alalääkkölä says the case raised alarm bells in the art world.
“Other artists are very concerned. I’ve had a lot of messages of support and advice … It is something that I feel like I have to do something about. Try and stop it from happening again,” she says.
“I had no idea of even the paintings being relationship property, even the physical paintings, let alone copyright. I always thought the copyright belongs to the creator.”
And it does. But why this case is so interesting is because it’s the first time the courts have had to consider what happens when two different legislations, copyright and relationship property rights intersect.
Bell Gully senior associate Sebastien Aymeric says intellectual property is often misunderstood and underestimated by the public.
“Whether it’s copyright, trademark, or a patent, if it is owned personally, not by a company or been sold to a third party, then it needs to be taken into account as relationship property,” Aymeric says.
Under the Relationship Property Act, each artwork has two distinct rights: the painting itself as a property asset and the copyright in it.
But Aymeric says unlike the actual physical artwork, which has a finite increase in value, owning the copyright in a digital world can be limitless.
“Copyright is literally created out of nothing but can be worth millions and millions of dollars. So it’s not like a house or even a famous painting itself that can increase in value, you know, two, three times tenfold. With copyright you know, there’s almost no limits as to how much money you can make with it,” Aymeric says.
That’s because it’s a matter of how many copies you want to make with that copyright.
“I had no idea of even the paintings being relationship property, even the physical paintings, let alone copyright.”
– Sirpa Alalääkkölä, painter
Aymeric says what Alalääkkölä’s case doesn’t touch on is the creator’s moral rights, which protect the artist’s work from being defaced or treated derogatorily.
“There’s a non-economic aspect to copyright, so-called moral rights, and that the right to the author, regardless of who owns copyright, so you can create a painting, you sell the copyright to that painting to a third party, because you are the painter or the creator, you still retain moral rights,” he says.
But challenging the derogatory treatment as copyright infringement hasn’t yet been challenged in New Zealand courts, Aymeric says.
To assert moral rights, the artist must sign off their masterpiece to prove it’s their work.
“A lot of businesses and artists start on the back foot, because they don’t put a copyright notice on their products. You want to put the world on notice, that’s mine, don’t copy it, it belongs to me. Especially online,” he says.
Senior divorce lawyer Jeremy Sutton says artists can also protect themselves by signing a prenuptial agreement to ring fence their skills.
However, as circumstances change, prenuptial agreements have to be updated over time to ensure they’re still protecting particular assets because things like children can change the situation.
“Couples don’t like talking about this stuff because it can bring up trust issues and so on. And you can’t predict whether your art’s going to become famous after you marry someone,” Sutton says.
It is also a lengthy process that can take up to a year from preparation to agreement.
“People are probably surprised that something that’s personal and they’ve been good at for a long time has been shared with someone else. But in reality [copyright in artwork] is treated as any other property.”
– Jeremy Sutton, senior divorce lawyer
In his practice, Sutton says he often deals with the issue of defining various forms of property, and most recently he has had some cases around defining cryptocurrency as property.
“The definition of property is very wide. There are some things that are not relationship property, like anything acquired before the relationship starts and stays separate,” Sutton says.
Where artists will be feeling the ruling is unfair is that the High Court focused on the property not the artist’s skill, he says.
“People are probably surprised that something that’s personal and they’ve been good at for a long time has been shared with someone else. But in reality [copyright in artwork] is treated as any other property,” Sutton says.
Alalääkkölä says the silver lining to her court case was that she has been able to shed light on an issue many artists are unaware of.
She believes it’s “completely ridiculous” that art is considered the same as other forms of property like a house.
“Art is always a personal brand. How can you even take that away? Artists put their soul in it … And that’s like a part of your being.”
She feels as though relationship rights have been given more weight than the artist’s individual rights.
“Some of the work that I’ve done, that I never want anyone to see or be reproduced, I lose my right to decide. And that, to me, is wrong.”
Another group worried about this decision are private buyers of her art and galleries.
“The originals that I’ve painted during the relationship, a lot of them were sold as one-off originals for a good amount of money in the understanding that they will never be made into mass produced prints or any kind. I’ve lost that right. And that is like betraying your customers who thought they bought one of these.”
Alalääkkölä says she’s unsure at this stage about whether she’ll appeal the decision.
“I haven’t been to court before. I had no idea how grey the law is, how they always refer to cases from the past. This is why I feel like I have to kind of fight this one. Because otherwise this will be used as a precedent for other cases.
“At the same time I think I’ll just keep painting, creating new stuff and move on. Anything from now is all mine. I certainly have learned something from this.”