The latest decision by the Supreme Court held that sole legal ownership remains with the artist. “The court decided Ms Alalääkkölä could not be forced to part with the copyright. Therefore, she was able to retain the copyright and thereby control the making of copies, etc., but she has to pay her former partner a share of its value in order to ensure an equal distribution of assets,” said Nadia Ormiston, senior associate at Dentons Kensington Swan in Auckland.
According to her, copyright as a property right logically fits within the definition of assets under the PRA.

“However, this inclusion creates tension,” Ormiston said. Unlike tangible assets, copyright can be deeply personal, she explained. Take a painting for example. Often, a piece of art such as a painting, is the result of a lifetime of training, learning and creating. Hence, artists are likely to feel a strong emotional attachment to their paintings. Some artists even have no intention of ever selling or exploiting the copyright in their works, or at least some of their works. So, if these works are treated in any way that is not in accordance with the artist’s wishes – such as using a painting for mass reproduction on merchandise –  this may directly harm the artist’s reputation and career.

“In this unusual case, the Supreme Court tried to address this tension by deciding that although the paintings themselves were relationship property, Ms. Alalääkkölä retained sole ownership of them and the copyright in them. This means she can control the works as she sees fit, so long as she compensates her ex-husband for their value, an issue sent back to the Family Court to determine,” Ormiston explained.

Another issue in the appeal involved how to classify and value the artworks and the copyright in them. Alalääkkölä categorized her works into three groups, namely: works she would never sell or commercialize because they were unsuitable, damaged or private; works she might sell as exclusive prints but not for merchandising; and works she had previously commercialized in the form of prints or cards. The Supreme Court accepted such categorization. “The category of each work will affect its valuation, allowing Ms. Alalääkkölä some control over the valuation process,” said Ormiston.

“The decision may initially appear alarming for creators including authors and artists,” added Ormiston, “but it at least provides some clarity on the approach to the division of property in the form of copyright, following a separation.”

She advised creators concerned about losing ownership and control of their copyright due to relationship property rules to consider legal mechanisms like contracting out. “Do so early in a relationship,” Ormiston suggested.

- Espie Angelica A. de Leon