Legal Consideration in Buying Work of Art
Over the past few years, Malaysian art industry has been gaining gradual momentum on the global map, with the expected rise in the export value of the country’s art sector to RM3.8 million this year compared to RM3.3 million recorded last year. Additionally, the advent of globalization and cyber technologies have influenced and directed the energies in the arts and the artists into very different directions. As the boundaries of what constitutes ‘art’ have been progressively pushed to their limits, it has become more challenging for the law to draw the line on what an art of work is.
While making reference to Clause 2.21 of the Standard Trading Conditions of the Federation of Malaysian Freight Forwarders, the judge in Kintetsu World Express (Malaysia) Sdn Bhd v Ohgitani (M) Sdn Bhd & Satu Lagi [2017] 1 LNS 1539 defined the word ‘Valuables’ to include a work of art. It was stated that:
“Valuables means any negotiable instruments and includes bullion, coins, money, precious stones, jewellery, antiques, pictures, work of art and any similar goods of certain value or carried at ‘Agreed Value’ specified in the Bill of Lading or Waybill.”
In another case of Syed Ahmad Jamal v Dato Bandar Kuala Lumpur [2011] 2 CLJ 569, the plaintiff (a highly respected and internationally well-known artist), designed and completed a sculpture entitled Lunar Peaks and the surrounding landscape on a vacant government land, pursuant to a commission by UMBC Harta Sdn Bhd (“UMBC”). Later, the Lunar Peaks and the surrounding landscape were presented to the defendant as a gift from UMBC to the residents of Kuala Lumpur. The defendant carried out modifications to the Lunar Peaks and to the surrounding landscape without notifying the plaintiff or seeking his consent and had also removed the plinth. The plaintiff then demanded that the defendant forth with restore the Lunar Peaks and the surrounding landscape to its original condition.
He claimed that the defendant had infringed his moral rights pursuant to Section 25(2) of the Copyright Act 1987 (“Copyright Act”)1.
The judge held that Section 25(2) of the Copyright Act prevents any person from presenting a work without identifying the author or under a name other than that of the author. According to the judge, Section 25(2) of the Copyright Act contemplates a work of art that has fallen into a state of disrepair. Removal of the unique plinth by the defendant had resulted in failure to identify the plaintiff as the author of the work of art. Hence, the moral rights of the plaintiff to be identified as the author of the work of art have been infringed by the defendant. It was highlighted that:-
“Whether the moral rights of an artist have been infringed will depend on whether the distortion or mutilation of the work significantly alters the work, and is such that it might reasonably be regarded as adversely affecting the artist’s honor or reputation.”
Section 3 of the Copyright Act defines ‘artistic work’ as (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; (b) a work of architecture being a building or a model for a building; or (c) a work of artistic craftsmanship. The only criteria for a creative work to be eligible for copyright protection is that there must be sufficient effort applied or put into the work to make the artistic work original and the work must be reduced to a material form. According to Section 13 of the Copyright Act, copyright in an artistic workshall be the exclusive right to control in Malaysia. The copyright will subsist during the life of the author and upon his death, the right will continue to subsist until the expiry of a period of 50 years thereafter2.
The UK Position
In the UK, sculptures and other works of art are specifically mentioned in Section 4 of the Copyright, Designs and Patents Act 1988 (“CDPA”) as being works in which copyright subsists. The rights conferred on the ‘author’ of a work of art and the restrictions imposed on third parties in relation to copyright works are listed in Chapter II of the CDPA. The author of a sculptural work has copyright in the artistic work and it is the author alone who has the exclusive right to copy the work or issue copies to the public without any restriction. In order for a third party to copy the work, express permission or license to do so by way of a legal agreement must be obtained from the copyright holder. If such permission is not obtained, it would amount to an infringement of copyright and would expose the person or institution making the unauthorized copy to legal action(s).
Although the CDPA does not define the word “painting” or “sculpture”, the case of Breville Europe plc v Thorn EMI Domestic Appliances Ltd [1995] FSR 77 demonstrates that a plastic Frisbee is an engraving and that plaster casts of a sandwich maker were sculptures. It is provided under Section 4(1) of CDPA that graphic works, photographs, sculptures and collages are artistic works irrespective of artistic quality.
Thus, it appears that an artist has no moral rights unless a work falls under any of the categories for “artistic works” under the CDPA, which is not always easy to determine. In Metix (UK) Ltd v GH Maughan (Plastics) Ltd [1997] FSR 718, it was held that sculpture was “a three-dimensional work made by an artist’s hand”. The High Court decision of Lucasfilm Ltd v Ainsworth [2011] UKSC 39 considered previous jurisprudence on sculpture in depth, recognized the difficulty of defining sculpture and suggested a “multi-factorial approach” which was approved by the Supreme Court of the United Kingdom. The test introduced by the court lies on the sole purpose of the creation of such sculpture: –
“A pile of bricks, temporarily on display at the Tate Modern for two weeks, is plainly capable of being a sculpture. The identical pile of bricks dumped at the end of my driveway for two weeks preparatory to a building project is equally plainly not. One asks why there is that difference, and the answer lies, in my view, in having regard to its purpose. One is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes.”
The Position in Australia
In Australia, artistic works covered by the Copyright Act 1968 (Australia) include drawings, paintings, sculptures, photographs and craftworks. Although notice is not a requirement for copyright protection in Australia, it however serves as a warning to others that the work is protected by copyright and informs them of the person claiming copyright ownership. As a result of international treaties such as the Berne Convention, Australian artistic works are protected by copyright in most other countries.
With regards to ownership, the general rule is that the person who creates an artistic work will be the first copyright owner. However, there are a few exceptions to the rule: –
- Employees: An employer will own the copyright if his employee creates the work as part of the job.
- Commissioned material: It is an exception if a person takes photographs, make portraits, or create engravings, where someone pays him to make the work for a private or domestic purpose.
- Work done for governments: The government will be the copyright owner if a person creates artworks for a State, Territory or Commonwealth Government.
Under Australia’s Copyright Act 1968, copyright lasts for 70 years after the death of the author of the work. It is interesting to note that Australia’s Copyright Act 1968 provides that upon passing of the relevant time, the copyright lapses and the work is then considered to be in the “public domain”, which essentially means that anyone has the right to use it.
The two main ways of dealing with copyright in Australia are by assigning or licensing. With regard to the former, the author of the work transfers his/her copyright to a third party which then owns it with all the rights deriving from copyright ownership.
Such assignment must be in writing and signed by the author assigning the copyright. Alternatively, an author allows someone else to exercise some or all of his exclusive rights when he/she licensed his/her copyright to another.
In conclusion, the works of great craftsmen have been prized throughout history both for their inherent beauty and for their representation of man’s highest creative talent. Therefore, it is without doubt that works of art are accorded the characteristics of private properties for some purposes while for other purposes, they assume the character of public or quasi-public properties. Protection of works of art is a matter of huge importance across the world, as such, legislators in different jurisdictions play significant roles in regulating protection of arts around the world.
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- Copyright Act 1987 (Act 332).
- Section 17 of the Copyright Act.
- https://www.barcouncil.org.uk/media/313944/_46__stephanie_wickenden.pdf.
Written by:
Syed Zomael Hussain (Director) zomael@azmilaw.com
Tengku Athirah Tengku Azhar (general@azmilaw.com)
