Do we need a bill of rights? 

News this morning that Melbourne City Council pulled a painting by the PM's nephew, Van Thanh Rudd, from a forthcoming exhibition in Ho Chi Minh city because 

(1) it did not fit within the purpose of the arts grant program; and

(2) "legal assessment had also indicated it might infringe trademark (sic) and copyright provisions" ... 

 Here's a representaton of the painting (from the Age online):


Trade mark issues?  OK, so I can see the golden arches and Ronald.  But there is no use as a trade mark here on the old Irving's Yeast Vite standard and, in any event, if the use does refer to somebody's goods or services, whose?

There have been some suggestions that the Olympic Insignia Protection Act 1987 would be breached.

But, there doesn't appear to be a representation of the torch prescribed under the Olympic Insignia Protection Regulations for the purposes of section 2A.

And, to the extent that what is available on IP Australia's website accurately reflects the Register Olympic Designs, we seem to draw a blank there too.

So, then we get to copyright:

According to the online Age, the problem is a painting by Bansky called American Influence:


and surely somewhere out there in the big wide world there has to be a photo of Ron The Mac and drawings of The Torch!

Now, according to the online Age, lots of readers have written in describing it as a blatant rip off.  However, art experts (Kim Donaldson and Lachlan Macdowell at Melbourne University) disagree.  They acknowledge the similarity, but consider the paintings conceptually "very different".

So, may be (perhaps even highly likely) we don't even get to infringement by reproducing a substantial part, especially if we remember Bauman v Fussell [1978] RPC 485 (not available online, so far as I'm aware) - the case where the photograph of the cock fight was not infringed by the transformational painting.  Ahem, but wait a minute - the author has acknowledged copying: it was an homage.  Hmm.  If there has been subjective copying, a finding of infringement must follow unless you can't see the "infringed" work in the resulting work: Eagle Homes v Austec [1999] FCA 138 at [86].

But, it's OK.  How about fair dealing for the purposes of parody or satire or criticism or review or perhaps even reporting news?

Now, the "fair" part of that does call for an evaluative exercise. Surely, however, given the worldwide controversy about the progress of that torch, this would have to qualify as a fair dealing for purposes of parody or satire?  Even sufficiently clearly for the purposes of a cautious bureacracy.

But wait a minute.  May be there is a "copyright" issue: how about breach of Mr Rudd's moral rights? 

There have in cases in Europe where the removal of works from sites they were commissioned for was derogatory treatment.  

Problems here: (1) was the work commissioned or was it just submitted, (2) what were the terms on which it was submitted - did they specifically contemplate rejection of the submitted work, (3) can't really infringe moral rights in Australia by not displaying something outside Australia - even though the author's reputation has been trashed here.

Posted: Friday - 23 May, 2008 at 01:42 PM         |

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