For centuries, paintings, sculptures and other artistic works have been admired, critiqued, sold, purchased, and exchanged.  But what are the ownership rules around these artistic works?

Who owns the copyright in artistic works?

Under copyright law, the “author” (i.e., the creator) is the first owner of copyright in their work. Therefore, unless an exception applies (including where artwork is commissioned), an artist owns the copyright in their artistic work.

What ownership rights do buyers have?

A buyer purchasing art acquires the exclusive right to possess, display, resell and generally enjoy the work. However, unless otherwise agreed, the artist will retain copyright ownership thereby enabling them to reproduce their work, sell copies and make derivatives.

Do artistic works created during a relationship form part of relationship property?

In the 2021 case of Palmer v Alalaakkola, the High Court held that copyright in paintings created by an artist during her marriage formed part of relationship property (rather than separate property).

As a result, Ms Alalaakkola’s ex-husband (who did not contribute to the creation of thehttps://dementiacanterbury.org.nz/ artistic works) was held to be a co-owner of the paintings.

The High Court acknowledged that the artistic skill of Ms Alalaakkola allowed the copyright to exist. However, it concluded that when it comes to the division of relationship property, the focus should not be on the skill, but rather on the property it creates.  The Judge further stated that the Property (Relationships) Act 1976 recognises the equal contribution of both spouses to the relationship, and that:

there is nothing to suggest the property rights created by the Copyright Act should be treated any differently from any other sort of property produced or acquired by a partner or spouse during the course of a relationship.

Therefore, under Palmer v Alalaakkola, copyright in an artistic work can be subject to the equal sharing presumption under the Property (Relationships) Act 1976 and divided accordingly at the end of a relationship. This decision is currently under appeal to the Court of Appeal.

Summary

If you are an artist and you wish to keep the copyright relating to your artistic works as separate property (i.e. rather than forming part of your relationship property), it would pay to enter into a contracting out agreement.  Contact Emily Flaszynski, Principal (03 343 8454 / emily@mmlaw.co.nz) or another member of our family law team to talk about a contracting out agreement.

If you have any questions around copyright, contact Dan Chisholm, Senior Associate
(03 343 8581 / dan@mmlaw.co.nz).