Thursday 10 June 2021

Is anyone above the © law? A holy row between Church and artist

In a time of global crisis amid pandemics and economic instability, you might not expect intellectual property issues to attract global attention. Unless, perhaps, it’s the Vatican that is in trouble.

Apparently trying to appeal to a wider and younger audience, the Vatican issued a postage stamp with an image of Jesus on it for Easter 2020. A perfectly respectable and logical image choice for something like the Vatican to select. The only problem… the image does not belong to the Vatican.

How can that be? Surely if anyone can claim to have ownership rights over an image of Jesus it would be the Vatican?

Not so.

The image chosen was taken from a piece of street art. As ABC News reports, the artwork was put up in 2019 by Rome street artist Alessia Babrow. In 2020 the Vatican copied Babrow’s work onto a print run of 80,000 postage stamps. Now, in 2021, Ms Babrow has sued the Vatican for copyright infringement, claiming nearly 130,000 euros in damages.

Attempting to claim ownership rights over a religious icon may at first seem improper, or even irreverent, but it makes more sense on closer consideration. The image in question is stylised and features distinctive elements that are recognisable as being Ms Babrow’s artwork. The Vatican not only reproduced the image, but Ms Babrow alleges it did so without her consent and has made money from its reproductions.

This has all the characteristics of copyright infringement; if ever there was a David and Goliath battle in intellectual property, this is it. We eagerly await the decision from Europe.

What would happen in New Zealand?

It is worth asking whether the situation would be different in New Zealand. Without delving into all the details and facts of the case, it is difficult to know for certain how things would play out. But a high-level look is promising for Ms Babrow because of the following reasons:

  1. Ms Babrow’s image is a ‘work’ in the form of an artistic work. The fact it is street art does not change whether there is copyright in the work.
  2. Copyright infringement occurs when an unlicensed person does any restricted act. Copying a work is a restricted act.
  3. The postage stage is a direct copy of Ms Babrow’s artwork.
  4. Copying has occurred (the Vatican has admitted to copying Ms Babrow’s image).
  5. A substantive portion of Ms Babrow’s image has been copied (the whole image has been replicated).

There are several exceptions to copyright infringement, for example copying a work for criticism or review, but none appear to apply here. The Vatican copied Ms Babrow’s work, then used the copies for economic gain.

At first blush, it seems the law would be on Ms Babrow’s side if this battle were to happen in New Zealand.

Can we learn anything? It’s not that complicated:

  • Avoid using artwork of any kind that isn’t yours or that or you don’t have permission to use.
  • If you are using someone else’s work without their authority, don’t make commercial gains from it.
  • No matter who you are, you are not above the law.