Kindness or Catastrophe? Australia's experience of resale royalty rights

"Artist’s Resale Royalty in Australia: Strong evidence of a catastrophic decline in both sales and prices: Australia's Art Market Down 50%" is the title of an article in AAD (Art Antiques Design) by Australian artist and artists' resale royalty agitator John R. Walker. According to the abstract:

In this article, I shall give an overview of the highly corrosive impact, which the Artist’s Resale Royalty (ARR) has had, and is having on Australia’s Art market. The impact of ARR also appears to have had an entirely adverse reaction on the UK’s Art Market; with trade in a large proportion of valuable secondary market Art works now, quite obviously, taking flight to places like New York, Switzerland and Miami. Below, as you will see, many reputable, and governmental sources have been cited. Due to the implementation of this scheme, we, in Australia, have sadly seen our indigenous Art sector virtually wither away right in front of our eyes since the ARR was introduced back in 2010.

I’m an Australian Artist, I’m not being paid to write this, and the below is an honest appraisal of what we are facing here due to the ARR, and it is written based on my personal experience, and on factual publicly available information.

This article powerfully and persuasively puts the case for taking an urgent look at a scheme which, however well-intentioned its implementation may have been, appears to be in need of careful reappraisal.

To read this article in full, click here

No copyright on milk crate?

On his Facebook page, the Melbourne artist Jarred Kennedy recently claimed that Hany Armanious' new artwork - a giant milk crate - looks similar to his sculpture, the 2005 McClelland Sculpture Prize entry.

Kennedy's post on his Facebook page

Last Wednesday, three public artworks were revealed by Sydney Lord Mayor, Clover Moore, including Hany Armanious' giant 13.7 metre high milk crate 'Pavilion', which the Sydney council decided to install in Belmore Park, near Central Station.

Armanious, whose giant crate is accused of infringing the copyright in Kennedy's work, is one of Sydney's most respected contemporary sculptors and a globally recognised talent. When Armanious submitted 'Pavilion' for review by Sydney's City Centre Public Art Evaluation Panel, it garnered praise from panel member Lisa Havilah, director of Carriageworks. She said that "Sydney is full of milk crates and there was something wonderfully irreverent about making one 40 times larger that people can enjoy in a park".

Kennedy sent a letter to the City of Sydney and to Amarnious with reference to the alleged copyright infringement. The City of Sydney responded with the statement that a copyright infringement needs some act of copying and Kennedy will have to prove that Armanious had previously seen his milk crate.

While the question of whether Armanious' blue milk crate does infringe upon Kennedy's intellectual property rights remains to be answered, this episode leads to the question of the extent to which the law will protect artistic originality. Adaptation and appropriation of previous works by artists have become increasingly accepted by the artistic community, as we saw already in some posts here and here, for instance, in the Cariou v Prince case.

Where do we draw the line between inspiration and imitation?

Artists' resale royalties: a piece of pie, or not even that?

Chart and extrapolations by Prof Paul Fritjers, UQ

"Artists Resale Royalties: a piece of pie…", which you can read in full here, reflects some diligent digging by John Walker and which was posted earlier this month in Club Troppo ("The suppository of all centrist wisdom since 2002").  To give you some idea of what it's about, John opens with some facts and a question which he then discusses:

"The ARR scheme so far has cost taxpayers just over $2.2 million and as of December 2013 has delivered a total of 7,800 royalty payments, to 800 artists (or estates) with a median value of about $105 per payment. The scheme has, in three and a half years, only generated a total of less than $200,000 in management fees. It is unlikely that the scheme will be self-funding any time soon, if ever. And what has this costly public art project delivered?"

John's conclusion?

"The millions of dollars of public money that has been wasted on this scheme, is money that was not spent on helping emerging and lesser known artists gain access to public exhibition and potential markets. It is all those lesser known artists that have been really ripped off by the funded lobbyists for their pet ‘art project’".

Readers may wish consider whether the Australian ARR scheme is (i) right in principle and right in practice, (ii) right in principle but wrong in practice, (iv) wrong in principle and wrong in practice or, improbably but not impossibly, wrong in principle but right in practice.  Do let us know!

Artist faces child pornography charges

The recent federal elections may have overshadowed this latest art news out of Australia.

Australian artist, Paul Yore, was charged last week with producing and possessing child pornography. The charges were laid following the seizure by Victorian police of pieces of his art back in June of this year. The artworks were from one of his installations called "Everything's F..ked" - which was on display at a Melbourne gallery at that time.

One of Yore's allegedly pornographic pieces

The case is scheduled to be heard in the Melbourne Magistrates Court in November. If it goes to trial, it is likely to be a landmark case on the censorship of art.

Source: The Australian, 7 September 2013

Australia's new superannuation laws threaten art prices

It appears that the Australian art industry is feeling the first effects of changes in Australia's superannuation laws.

Under the changes self-managed super funds (SMSF) investing in collectables and personal use assets are subject to tighter rules as to how such collectables and personal use assets are stored and valued. In the context of the legislation, such collectables and personal use assets include artwork, jewellery, antiques, artefacts, coins or medallions, postage stamps or first day covers, rare folios, manuscripts or books, memorabilia, wine, cars, recreational boats, memberships of sporting or social clubs.

The new laws, which came into force on 1 July 2011, inter alia provide that:

• these items cannot be stored in the private residence of a related party of the fund;
• the fund must have written records in respect of decisions as to the storage of these items;
• these items must not be used by related party; and
• the transfer of an asset to a related party requires independent valuation.

It was predicted that the new laws would lead to the liquidation of art collections by SMSFs – who have until 1 July 2016 to bring their assets in line with the new rules or dispose of them. The AFR reports on one of the first skirmishes as follows:

"Sydney dealer Martin Browne last week forced the withdrawal of five works by Giles Alexander from Mossgreen’s Sydney sale of the contemporary collection of opera director John Wregg and his partner, artist manager Judith Alexander, on Sunday.

Browne did so by exercising Alexander’s copyright in images which had already made it into Mossgreen’s sale catalogue.

And he made the move because the Mossgreen estimates, which ranged from $500 to $3500, were “10 to 15 per cent” of the gallery prices set for the 37-year-old artist, who recently had his first show at London’s Fine Art Society, and whom he began to represent four months ago, he says.

“A low estimate gets people in, particularly if they are looking at the gallery prices,” says Browne, who had a number of artists – including McLean Edwards, Alexander Mc¬Kenzie and Tim Maguire – among Sunday’s 203 lots.

“Contemporary works should be held a minimum of 10 years, then sold judiciously, not just dumped on the market, at a loss in many cases.” ...

The sale in Sydney’s Queen Street, Woollahra, moved only about 60 per cent, on both volume and value, totalling $250,000, including buyers premium, against a pre-sale estimate of $330,000 (without). It also included eight unsold Susan Norries.

It follows the sale of 120 works from Melbourne Aboriginal dealer Bill Nuttall’s superannuation fund through Bonhams in May on estimates slashed to beat the anticipated rush as collectors moving to comply with the superannuation changes. “We are facing a potential tsunami of material being forced onto the market by the changes,” Browne says."

It remains to be seen whether this prediction proves accurate.

Source: Australian Financial Review, 1 November 2012

New Australian art law?

If the latest art news from Australia is anything to go by, it seems that new legislation may shortly be introduced to protect international artworks which have been loaned to Australian galleries from seizure in the event of an ownership dispute.

The Sydney Morning Herald reports:

...[T]he Arts Minister, Simon Crean, said yesterday: ''The new legislation will guarantee the return to the lender of cultural objects such as paintings, drawings, sculptures, textiles, stamps and coins, which are brought to Australia on loan for temporary public exhibition.''

Without it, he said, Australians might have been denied the opportunity to see masterpieces such as those on loan from the Prado in Madrid to the Queensland Art Gallery.

The lack of such laws has been cited by Australian collecting institutions as a barrier to negotiating loans where there is the potential for dispute about a work's ownership or ethics of acquisition.

Antiquities, indigenous artefacts and works expropriated from Jewish citizens by the Nazis, or from Russian owners by the Soviets, are among those that have become the subject of disputes internationally.

The new legislation, to be passed in the spring session of Parliament, will ''ensure that any [such] loans from overseas collections will be co-ordinated in consultation with Aboriginal and Torres Strait Islander people'', Mr Crean said.

If there really has been a barrier to international art coming into Australia due to inadequate legal standards, the proposed legislation may be a welcomed change. It remains to be seen whether such a change will actually make a difference to Australian galleries.

Les baigneuses by Pablo Picasso - exhibited in
the Art Gallery of New South Wales
between 12 Nov 2011 - 25 Mar 2012
 on loan from the Musée National Picasso, Paris

Source: Sydney Morning Herald, 21 July 2012

Birds of a feather...copy each other?

The Australian press is a flurry with reports of some artistic copying. The first image below is a photograph, entitled Shenae and Jade, by artist Petrina Hicks, which is held in the collection of the Art Gallery of New South Wales. The second is a painting by Czech artist Marek Hospodarsky entitled Bird.

Reports the Sydney Morning Herald:

Art dealer David Hulme found it hard to spot the differences when he received a promotional email from art dealer Saatchi Online.

The price of the Hospodarsky painting is $1200 - a print costs $20.

 Mr Hulme said the image was an ''iconic photographic image''. ''I compared the two and it's obvious that it's a copy,'' he said. ''The main problem is the way it is being proliferated to such a substantial amount of people around the world.'' He rated the work as ''quite an amateurish representation of Petrina's very highly professional work'' and said it could damage the artist ''because it is not of anywhere near the same quality''.

When The Sunday Age contacted the Stills Gallery in Paddington, Sydney, which represents Hicks, it was not long before a second painting by the artist was discovered on the Saatchi website that also looked familiar. Hicks accused Hospodarsky of ''directly'' ripping off another of her images. "I can also recognise the works of other well-known artists in his paintings; his work is 100 per cent derivative,'' she said.

Looking to our favourite recent UK Red Bus case, there it was held that it is possible to infringe copyright in a photograph by recreating a scene that had been photographed, when the skill and labour of the author (his intellectual creation) went into creating the scene that was photographed in the first place. The judge found that the common elements between the defendants' work and the claimant's work were causally related, in other words, that they had been copied, and, on a qualitative assessment of the reproduced elements, those elements were a substantial part of the claimant's work. Therefore, there was copyright infringement of the original work.

Applying the decision to the facts of this situation, upon a very basic visual appraisal (of my own), it does seem that the Hospodarsky painting reproduces the key visual elements of the Hicks painting. I would be interested to know our readers' views on the matter. Would you consider that Hospodarsky's painting reproduces a substantial part of the Hicks image so as to amount to copyright infringement? Or is Hospodarsky's painting his own intellectual creation.


Source: Sydney Morning Herald, 8 July 2012

Censorship in Australia - Update

Further to my post here, I have had some very interesting responses. The first provided me with the chance to meet up with one of the Aussie experts on classification, who had testified at the Parliamentary Committee hearing and provided a submission to the Australian Law Reform Commission (ALRC), and who happened to be over in London last week visiting from the University of Canberra. We had a great lunch and I was able to learn a whole lot more about the classification debate currently taking place in Australia than is available on Google (which is probably another first).

Now, another expert, Robyn Ayres, the Executive Director of the Arts Law Centre of Australia (Arts Law), has sent me some more information to share. Robyn notes:

The Arts Law, the national community legal centre for the arts, made a submission and gave evidence to the Senate Inquiry into the National Classification Scheme (NCS). As reported by Simone, the Senate Committee handed down its report on 30 June 2011 and the final report can be accessed here. It is noted that the Senate Inquiry was chaired by former liberal senator, Guy Barnett, a religious conservative, and the grab bag of issues canvassed were of particular concern to those holding similar political and social views as the Chair. See Arts Law’s summary of the Senate Report here.

Whilst the Senate Inquiry was underway, the Australian Attorney General, Robert McClelland, asked the ALRC to inquire more broadly into the NCS especially in view of the many technological developments, particularly convergence issues, and adult-themed computer games, which have emerged since 1995 when the NCS was established. No doubt the recent controversies in Australia concerning the appearance of naked or semi-naked children in art (notably the Bill Henson photography exhibition in 2008) also formed part of the background to the ALRC reference. The ALRC issues paper took a more comprehensive and systematic approach to how the classification and censorship systems should work in Australia.

Submissions to the ALRC inquiry closed on 15 July 2011. Arts Law’s submission, which was widely supported by the Australian arts community, suggested that the Australian Government needs to take a more realistic approach to classification and censorship in the digital age, that it was unnecessary to classify the visual arts and the current NCS which theoretically applies to moving image art (as film), should also be exempted from the classification system. Arts Law also emphasized the importance of retaining ‘artistic merit’ as a factor to be considered classifying work, particularly for the R18+ rating, in view of the right to freedom of expression and the underlying principle that adults should be free to read see and hear what they choose. This principle should only be subject to prohibiting access to illegal content eg child pornography. The ALRC is due to report 30 January 2012.

So it seems that unfortunately this issue is not going to be resolved any time soon. But I will certainly be watching the debate as it develops from now. Thanks to all for their help.

Image: The Birth of Venus by Alexandre Cabanel 1863 (from artslaw.com.au)

Limited access art

One of my favourite London magazines, The Stylist [not only free, but full of great content – bit like this blog] recently ran a short piece of news from my homeland. It reported that the Australian government [not known to be the most liberal of governments] had issued a report urging that works of art, as visual works, be given an age-restriction classification in the same way as films. Intrigued I did some digging and, voila, stumbled across the Australian Senate Legal and Constitutional Affairs References Committee's “Review of the National Classification Scheme: achieving the right balance”. Unfortunately, not only is the title a mouthful, but the report itself is huge. So in my quest to achieve the right balance between too much information and not enough [and between work and life], here is a summary of the main points I picked up.

- The Senate referred the Australian film and literature classification scheme to the committee for inquiry and report, with particular reference to inter alia the application of the National Classification Scheme to works of art and the role of artistic merit in classification decisions.

- In the committee's view, the National Classification Scheme is flawed in a number of key areas including: (i) Aside from the complexity of its legislative framework, the scheme does not protect children from material that is likely to harm them; nor does it protect others more broadly from exposure to unsolicited material that they may find offensive, and (ii) 'Artistic merit' remains a defence to child pornography and child abuse material offences in many states, meaning that sexualised images of naked children can be exhibited in public galleries under the guise of 'art'. [This refers to the case of photographer Bill Henson whose artworks were seized by police from an exhibition in Sydney in 2008 due to the fact that they depicted naked children (of 12 and 13).]

- Accordingly, the committee believes that significant changes should be made to the National Classification Scheme.

- As a starting point, the committee identified several key principles should underlie a classification scheme in Australia.

- One of these principles is the application of the National Classification Scheme to artworks. In this respect, the committee noted that the application of the National Classification Scheme to artworks for public exhibition or display is limited. In the committee's view, obtaining classification will assist in ensuring that audiences can be provided with appropriate advice (and, where necessary, warnings) regarding the nature of the artwork. However, since the cost of application fees for classification could present difficulties to artists, the classification of artworks should be exempt from those fees.

- The committee also strongly opposes the inclusion of the artistic merit defence for child pornography offences in state legislation [which was removed from the NSW laws following the Henson case]. Accordingly, the committee recommends that the Australian Government, through the Standing Committee of Attorneys-General, pursue with relevant states the removal of the artistic merit defence for child pornography offences.

It is not really clear where we go from here. That could however just be because my knowledge of Australian Constitutional Law is a distant memory. So, if anyone knows, please enlighten us.

If you would like to read the whole report, you can find it here.

Image from olinda.com

Protecting Aboriginal Art

It was recently announced that the Australian government has added an old ochre mine to the Australian National Heritage List. The National Heritage List sets out the places which are considered to be of outstanding heritage value to Australia and includes places such as Uluru and Kakadu National Park. These places are protected under the Australian Government's national environment law — the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The mine in question, the Wilgie Mia ochre mine in Western Australia is the largest and deepest underground Aboriginal ochre mine in Australia. Ochre of different colours has long been used by Aboriginal people throughout Australia in Aboriginal art, as well as in Aboriginal law, traditional ceremony and healing rituals. The mine has provided red, yellow and green ochre to Aborigines for thousands of years and is regarded by some as the best ochre in Australia. It has all the features found in traditional Aboriginal mines: large open-cut pits, excavated caverns and underground galleries that follow ochre seams, and there is reportedly a considerable amount of rock art in the vicinity.

Sample piece - Ochre on Canvas
Rainmaker Wandjina by Lily Mindindil Karadada, 2006

The listing will help protect the historic site from encroaching iron ore developments. By law, no one will be able to take an action that is likely to have a significant impact on the national heritage values of the mine without approval. There are penalties for those who do. An action includes a project, development, undertaking, an activity or series of activities. Accordingly, any proposed activities will have to be referred to the Australian environment minister.


Source: The Australian, 8 March 2011

Watch what you say about Art Dealers…

The Australian Northern territory Supreme Court in Alice Springs has recently denied an application from the Australian Broadcasting Corporation (ABC) to strike out an Aboriginal art dealer’s defamation claim.

The case relates to a television programme which examines exploitation in the Aboriginal art industry. This is not a new subject, Bruce Chatwin describes the Aboriginal art industry with a mixture of humour and, at times, quiet anger in his classic Australian travelogue: Songlines. But Bruce Chatwin never faced a defamation claim. Unfortunately for ABC, despite the fact that the Claimant, Mr Nibbs, refers to himself as the "original carpetbagger" in the programme he is now claiming that what he in fact said was that others have referred to him as a carpetbagger.

Unsurprisingly, Mr Nibbs didn’t like the whole of Australia to believe he was a “carpetbagger” and alleged that viewers of the program have been led to believe he is unscrupulous in his dealings with Aboriginal artists, paying the artists inadequately for paintings produced under oppressive conditions.


As with all defamation claims, the very fact of bringing a claim has led to far wider coverage than might otherwise have happened. It also raises the importance of the artist-dealer relationship and how crucial this is for both parties.

For more information on Aboriginal art, see here.

Source: ABC news