Divorce, art and copyright

Article  \  1 Oct 2021

In this article written by Asia IP, Paul Johns (AJ Park Principal) discusses a recent High Court decision involving divorce, art and copyright.

A divorce case between an artist and her husband in New Zealand has got copyright issues thrown into the mix.

Not only will they have to divide their former abode at Marlborough Sounds, located at the northern end of the South Island of New Zealand; they may also have to split a huge collection of paintings as well and the corresponding copyright for these artworks.

Painter Sirpa Elise Alalääkkölä, born in Finland and now living in New Zealand, and husband Paul Anthony Palmer parted ways in 2017. The former couple headed to the Family Court in Blenheim for the division of their properties. Among these were Alalääkkölä’s paintings, created during the 20 years she was married to Palmer.

Last year, the judge ruled that the copyright for the artworks is not relationship property. The Copyright Act vested copyright to the creator of the artworks, the judge said, and the skills possessed by Alalääkkölä and used by her to make those artworks, already existed before she married Palmer.

Wanting an equal share of the paintings and their corresponding copyright, Palmer appealed the ruling at the High Court in Blenheim in July 2021. He said he aims to copy and sell these art pieces.

In his decision over Palmer’s appeal which was released early in September, Justice Andru Isac said that copyright in an artistic work is relationship property. He added that it seems the Copyright Act and the Property (Relationships) Act are interacting in unique ways previously not considered in New Zealand.

Isac also said that the Property (Relationships) Act required relationship property to be divided equally, at least in most cases and that this should be applied to the former couple who were married for 20 years.

'I agree with the High Court that the Family Court fell into error in stating that copyright was not relationship property because the copyright works were created using skills acquired prior to the marriage. Those skills are not themselves property, and no copyright or other property right exists purely because a person has the skill to create a work in the future,' said Paul Johns, a principal at AJ Park in Auckland.

Admitting this is an issue of family law on which he is not an expert, Johns said that the copyright fits the relevant statutory definition of ‘relationship property’ which is ‘all property acquired by either spouse or partner after their marriage…began.’ This definition is subject to certain exceptions. But, according to Johns, these exceptions don’t seem to apply in this case.

“Copyright is undoubtedly ‘property.’ Copyright comes into being on creation of an original work in which copyright can subsist. Copyright in paintings made during a marriage is therefore property acquired by the artist after their marriage began,” he explained.

Read the full article on the Asia IP website here.

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