Wamod Namok’s “Kangaroo” - Copyright infringement

By Arts Law Centre of Australia on 15th April 2011

A well known and respected artist, the artwork of Wamud Namok AO is held in almost every major public collection in Australia. In 2010, a major retrospective of his works was held at the Museum of Contemporary Art in Sydney. In 2004 he was awarded the Order of Australia for his contribution to Aboriginal art and culture. A long time member of Injalak Art Centre, he passed away in 2009.

Kangaroo

Detail "Kangaroo" by Wamod Namok

In 2005, reproductions of his "Kangaroo" painting were offered for sale on the internet accompanied by statements that any sales would result in royalties being paid to the artist. Sadly, the reproductions were unauthorised and the artist had never received any royalties.

Artists in the Black enlisted the assistance of pro bono lawyers at Gilbert + Tobin. They secured the services of Rumore Associates, a firm of private investigators, who also acted on a pro bono basis. The investigators tracked down the identity of the person behind the eBay sales and Gilbert & Tobin sent him a strong letter of demand requiring that all internet sales immediately cease. The seller removed the reproductions from sale but claimed to have a copyright licence provided by a gallery which had had dealings with the artist. He agreed to deliver up the remaining prints and a copy of the 'licence'.

The 'licence' was a short document which appeared to have been signed by the artist and his daughter. When it was shown to them, they said that they thought it was no more than a receipt for the sale of the original painting to the gallery and never understood that it dealt with copyright or licensing. The artist did not read or write English and had not been provided with any explanation. His daughter merely witnessed his mark and was not given an opportunity to read the document or ask questions.

Gilbert & Tobin wrote a further letter to the eBay seller warning him that the licence was invalid and could not be relied upon. The next step was to deal with the gallery. Sadly during this time the artist passed away however his family wished this matter to be finalised. Another letter of demand was sent to the gallery making it clear that the so-called 'licence' had been signed under a mistaken belief as to what it meant and was invalid. The letter made it clear that the gallery had no rights whatsoever in the artist's copyright and threatened legal proceedings if the gallery made or authorised any reproductions of the Kangaroo artwork in the future.

This case study highlights the type of problems which can arise when unscrupulous dealers take advantage of artists with limited English. It is important never to sign anything that you do not understand and to seek legal advice first. In this case, letters of demand were successful in stopping further unauthorised reproductions of the artist's work.

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