Legal Issues Associated With Setting Up a Commercial Art Gallery in Tasmania

The Legal Issues Associated with Setting up A Commercial Art Gallery in Tasmania, Australia
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The Legal Issues Associated with Setting up A Commercial Art Gallery in Tasmania, Australia
Introduction
Australia is known for its elaborate and enthusiastic art market that consists of various kinds of arts such as photographs, ceramics, antiquities, paintings, sculptures, and works in glass among others. Some of the indigenous Australian artists who made these works of art are dead and honored, some dead and ignored and others are alive and struggling (Polk, 1999). Australia has two main cultures, which is Aboriginal and Torres Strait Islander. Aboriginal Australians are the native inhabitants of Tasmania and the mainland of Australia while Torres Strait Islander individuals are the residents of the islands of Torres Strait. Understanding these two indigenous cultures is significant when approaching business dealings involving visual arts sector (Mellor & Janke, 2001). Many different actors of Australian art market exist such as commercial galleries, arts and crafts shops, auction houses, and artists who sell directly to consumers.
Arts and crafts industry in Australia is not different from the other industries regarding problems that befall business enterprises. Unethical conducts and concerns about fraud within the Australian art industry are increasing each day resulting in persistent need to examine the legislation that protects people from such unethical practices and exploitation. Furthermore, it has led to need to find out how the law mechanisms work in reality and the step to be taken to improve the protection of the artists and the art business industry (The Senate Report, 2007). Therefore, various laws that govern the visual arts industry together with the laws governing new business set-ups are present in the Australian federal legislation. Anyone who plans to set up a commercial art gallery in Tasmania should be conversant with the legal issues associated with it. This paper will identify and discuss these legal problems and analyze the preferable legal outcomes related to setting up a commercial art gallery in Tasmania in Australia.
Legal issues related to Setting up a Commercial Art Gallery
Copyright
Setting up a commercial art gallery in Tasmania in Australia would require the business owner to understand about copyright. It is a parcel of property rights that creators own and it protects an individual’s artistic, creative skills and labor such as sculptures, engravings, paintings, drawing, photographs, crafts, and models of buildings (Mellor & Janke, 2001). Copyright consists of restricted economic rights to perform particular acts with an original work of art, including the right to publish, right to copy and communicate (Government of Australia, 2012). The Copyright Act, allows creators to possess legal rights to make more copies of their work, use it and give others permission to utilize and produce copies their works (Mellor & Janke, 2001). An artist of an artwork is usually the first owner of copyright no matter how many times the work may be sold. If the artwork meets the required standards of this law, artists can protect their artworks as soon as they create them by obtaining copyright. The Copyright Act also protects artisans who produce works of crafts such as spears, didjeridoos, and wooden piti dishes among others.
The act also deals with works of joint ownership where two or more artist collaborated to produce a piece of art. Furthermore, it protects artworks of unknown artist such as bark paintings from the 1950s to 1970s, which do not have information about their creators. In such a situation, Copyright Act law suggests that members of the community from which the art was designed should communally own the artwork and may take legal action for infringement of copyright (Mellor & Janke, 2001).
Copyright protects works of art during the lifetime of the artist, and in cases of death; it protects the artistic works fifty years from the day that the artist die. Upon the expiry of this duration, the creative artwork becomes a public property and free to everyone to use or reproduce without the need to pay fees or to obtain permission from the artist. For example, the works of art of Da Vinci belongs to the public because the artist died in 1915. Moreover, anyone can reproduce his works freely without having to seek his consent. However, within the indigenous arts, copyright does not protect all creators’ situations. For instance, copyright does not protect some form of rock arts that are more than fifty-one years old from the decease of their creators. However, the images of these rock artworks remain relevant and may belong to a particular culture. Therefore, anyone who may want to reproduce such rock art should seek permission from the local indigenous groups (Mellor & Janke, 2001).
In a commercial art gallery, an employer owns the copyright of the artworks made by his or her employees according to the terms and conditions of the employment, where the employees produce the work under a contract of service. In this case, the copyright vests in the employer if the artist uses the company’s or organization’s capital or resources to create the work, if the author is a central part of the employer’s gallery and receives a fixed salary. The employer will also own the copyright if an artist employed at the company creates artworks as his or her regular duties on the job.
Crown copyright refers to state government or the commonwealth, which may affirm copyright in artworks that artists create under its control and direction. Usually, government bodies may commission artistic works to promote talents and indigenous programs; they may also fund creative projects of the local citizen; therefore, the government is a significant source of work for many indigenous artists. However, artists dealing with government bodies or agencies for funding should obtain explicit provisions of copyright in a written agreement before they start working on the piece of art (Mello & Janke, 2001). The Copyright Act acknowledges that the crown (state government or Commonwealth) is the possessor of the copyright of the piece of artwork that is initially produced in Australia under its influence. If the written agreement states that the copyright’s holder is the Crown, the artist who created the artwork will have no rights to reproduce or use the work.
Infringement of Copyright
In a situation where one does actions contrary to the Copyright Act with no consent of the copyright holder, it refers to a violation of copyright. Infringement of copyright exists in different forms; the first one includes copying of the work. Copying an artwork or a substantial part of it is a breach of copyright. When the court identifies resemblance between the copied work and the indigenous visual artwork, they may be forced to take legal actions against the guilty party. For instance, in the carpet case, Justice Von Doussa found that the changed pictures on the carpet was a replica of a significant part of the original artwork, which was important and carried value identity of the original work (Janke, 2003).
It is also a violation of the Copyright Act to bring artistic work into Tasmania with the intention of hiring or selling. However, many importers usually escape legal actions under this section because many infringing items of artists come from countries where there are no copyright laws (Commonwealth, 2007). For example, in the Carpet Case, the trial began under the importation requirements. The court found that the carpet was produced in a country where no copyright laws were available (Vietnam) (Janke, 2003).
Copyright of crafts or sculptures that artisans create is not infringed if they are put in a public area and a person reproduces the same art in forms of painting, engraving, drawing, or photograph. Neither is it infringed if the artwork appears in TV shows or motion pictures. However, in a case where they use the sculptures for business advertisements, some rights protects such unauthorized commercial activity.
Libraries, archives, and educational institutions can make copies of copyright works for the purpose of learning and research. However, they must follow statutory procedures and pay statutory license fees. There are also strict limits on the number of copies they can produce and before making any copies, they should write to the copyright owner stating their request and accompany it with a signed declaration that they will not use the item for a different purpose than the intended. Artists should be aware of that these institutions might be royalties payable to them in certain situations.
Legal outcomes for infringement of copyright include a ban to stop the unauthorized use by the guilty party and an account of profits or damages. Damages can be punitive or compensatory. Punitive damages refer to where the court punishes the infringer for disrespecting the rights of the copyright owner while compensatory damages refer to an award of money by the infringer or court to compensate for the monetary loss suffered, for instance, the fee that the copyright owner paid to obtain the license. An account of profits in order by the court for the guilty party to pay all the profits made from the violation of copyright (Mellor & Janke, 2001).
Moral Rights
Australian government incorporated Moral Rights in the copyright legislation in 2000. Two types of these rights exist such as a right of attribution and integrity of authorship. The Moral Rights do not offer fiscal compensation to the copyright owners because they are non-economic and inalienable rights. Nobody can sell or transfer moral rights. They remain with the creator where the copyright does not belong to him or her (Arts Law Center of Australia, 2016). For example, where the employer or the Crown owns the copyright, the creator of the artwork maintains moral rights.
The right of attribution provides the right to be recognized as the sole artist in every important situation. The copyright owner should attribute and identify the artist each time he reproduces, exhibits or publishes the artist’s work. The copyright owner who is not the creator of the artwork should identify the artist in a reasonable form or accordance with the creator’s specifications (Mellor & Janke, 2001). The author under the right of attribution has the right to stop someone else from being credited as the artist of his or her work (Arts Law Center of Australia, 2016). The Moral Rights also provides the author with the right not to admit authorship of work that has been altered by another person. The only exception is where the effect of the alteration is significant or where the law permitted it to avoid any breach of the law.
The right of integrity, on the other hand, gives an author permission to ensure that his artwork is not experiencing derogatory (offensive and insulting) handling that is destructive to his reputation and honor. Offensive treatment can be anything that results in artwork destruction, distortion, and mutilation that is prejudicial to the reputation of the artist. It can be a derogatory treatment if exhibition occurs in the manner or place that diminishes the author’s honor (Arts Law Center of Australia, 2016). The right of integrity is vital for all indigenous artists as they preserve the overall integrity of the cultural work and cultural knowledge that underlies every piece of artwork (Mellor & Janke, 2001).
The period of the moral rights depends on the nature of it. For example, if the moral right is held by an artist or not. The moral right of integrity of the author and right of attribution expires seventy years after the death of an artist (Arts Law Center of Australia, 2016).
Moral Rights Infringement
Any act that is contrary to the artist’s moral rights is an infringement of the moral rights. For instance, failure to identify and attribute an author of artwork that is reproduced, published or copied. In addition, any form of derogatory treatment of the artist’s work is an infringement of the moral rights, which is punishable by the laws of Australia. However, there is no infringement if the author has permitted any omission or alteration to his work that would otherwise result in moral rights infringement. There is no breach of the right of integrity if the author claims of derogatory treatment and the instigator can defend of its reasonableness in all the circumstances (Mellor & Janke, 2001; Arts Law Center of Australia, 2016).
If someone has infringed an artist’s moral rights, the author or artist should contact them by sending a letter of demand. If a court finds the infringer guilty, the author can obtain a court order for a declaration of infringement, payment of money lost from the infringement, a public confession, and a request for elimination of derogatory treatment or false credit. These legal outcomes are obtainable by individual copyright owners and do not recognize family, tribal or community rights.
Trademark
A trademark is a sign on goods and services used in business to show that particular goods or services come from a specific trader or service provider. The sign can include any word, letter, name, brand, sticker, signature, color, scent, shape, or packaging design Mellor & Janke, 2001). Two types of trademarks include registered trademarks and common law trademarks. Under the Trade Marks Act 1995, anyone can register for trademark and obtain a form of legal permission to use the sign in connection to the goods and services and association with his or her trade. Once a person has a registered trademark, the mark becomes his or her personal property that he can license, transmit, or assign another (Australian Government, 2012).
Apart from using registered trademarks, a businessperson can use unregistered marks under the common law rights of passing off. Anyone who uses unregistered trademark that belongs to someone else has infringed this law. The owner of the unregistered trademark should take a passing off action to stop the infringer from using it. However, the owner may have to establish that he or she owns the trademark and that the utilization of another trademark would confuse consumers. A registered trademark owner has the rights to use the mark for as long as ten years and more upon renewals.
Indigenous art centers and commercial galleries use trademarks to boost their name and reputations. People and owners of commercial galleries may register their trademarks using various signs and cultural designs. The Trademark Act may protect commercial users of cultural material; however, the law must pertain to the registered owner (Arts Law Center of Australia, 2013). Many indigenous artists are hesitant to claim monopoly rights to items that have trademarks belonging to a collective group, not knowing that where the group has given permission, the indigenous artists can protect their cultural products using appropriate brands (Mellor & Janke, 2001). Under trademark, there is Label of Authenticity, which is a mark of certification put on artworks and services to confirm the authenticity of artwork that an indigenous artist has wholly created. Any local author who may require using the Label of Authenticity can apply for a license and pay a yearly registration fee to be included as a certified artist.
A Trademark infringement takes place when another person uses a trademark that is registered under a different person’s name. In the case of an infringement of Trademark Act, an individual who owns a trademark in Australia may be able to prevent other users from using the same trademark and acquire compensation for illegal use or infringement (Arts Law Center of Australia, 2013). It is also an infringement of Trademark if a businessperson imports art items, bearing false trademarks into Australia.
Registered Designs and Patents
The Design Act 1906 guards visual items that are three-dimensional or two-dimensional for business purposes. It provides the holder of the design a monopoly in the visual features of the object such as pattern, shape, ornamentation, and configuration of the design. Protection under the De...