Palmer v Alalääkkölä

A recent appeal to the High Court raised a novel question: is copyright in an artistic work, relationship property in New Zealand? The answer, it turns out, appears to be yes.

Background

The case involved Ms Alalääkkölä, a painter. During her 20-year marriage to Mr Palmer she created several original artistic works.

Upon separation, the parties were unable to decide whether the copyright in Ms Alalääkkölä’s paintings was relationship property to be divided between them. The Family Court initially found that copyright in the paintings was Ms Alalääkkölä’s separate property, on the basis that she obtained the skills necessary to create those works prior to marrying Mr Palmer. Mr Palmer appealed.

The High Court Decision

The High Court got to the crux of the issue fairly quickly. Noting that the case involved two very different pieces of legislation - the issue essentially boiled down to one of statutory interpretation.

• On the one hand, the Copyright Act 1994 (Copyright Act) protects an individual’s form of expression.
• On the other hand, the Property (Relationships) Act 1976 (Relationships Property Act) is social legislation with a presumption at its core of equal sharing of property.
• Section 14 of the Copyright Act confirms that copyright is a property right, while the definition of property in the Relationships Property Act includes the broad sweep “any other right or interest”. In light of those definitions, it would have been difficult for the Court to conclude that copyright was not captured, and so Mr Palmer succeeded on this point.

Our Two Cents

In our view, the High Court reached a sound decision. Copyright is a transferable property asset like any other. If skills learned earlier in life are later used to create valuable property during a relationship, why should the fruits of that skill not be relationship property?

We would have no concerns declaring a house built by a wife (who learned to build before meeting her husband) to be relationship property. However, the case reflects an interesting tension inherent in the nature of the right. Copyright is often understood as an intensely personal right. After all, one of the central justifications for copyright protection is incentivising creativity, and there is no doubt that copyright derives directly from the skill of the creator. However, it remains a property right – something that can be brought, sold, licensed, or transferred from one party to another for sometimes very valuable consideration. Recognising this tension helps to explain some of the unease evident in public commentary surrounding this case.

What about Moral Rights?

Some of that unease appears to stem from the notion that Ms Alalääkkölä should maintain the right to prevent her artistic works from being turned into postcards or otherwise “cheapened” by commercial exploitation by Mr Palmer.

The reality is that, to a degree, she still retains that right. Moral rights are provided for under Part 4 of the Copyright Act, but they are entirely distinct from the economic (property) right that copyright bestows on a creator. Moral rights are entirely personal - they cannot be transferred or sold and (not being “property” at all) cannot be relationship property. Based on the notion that in creating a copyright work, the artist “imbues a part of their soul into the work”, moral rights provide creators with the right to have their work correctly attributed to them, and give very important “integrity rights” to prevent derogatory treatment of their works. As Ms Alalääkkölä retains her moral rights to the works despite this judgment, any derogatory treatment of her works by Mr Palmer can still be prevented by way of injunction.  

Where to from here?

The High Court has remitted proceedings back to the Family Court in light of the determination on the copyright issue, while Ms Alalääkkölä has sought leave to appeal.

While the confirmation of copyright as relationship property is not a particularly controversial development, this decision may be prompting some to pause for thought. Collective licensing bodies may be considering the implications for distribution of royalty payments, and parties wishing to contract out of the Relationships Property Act will also now be taking stock of their IP.

If you would like to understand more about this decision, copyright, or how best to protect and use your intellectual property, please get in touch.

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Social media image credit: Artiom Vallat