Mandy Davis is an Indigenous artist from the Worimi people of the Great Lakes district of NSW. Mandy began painting in 1990 and her paintings have been widely acknowledged for their power and individuality. Mandy’s work is held in a number of private collections and appeared on the cover of the 2004-2005 Annual Report of the New South Wales Department of Aboriginal Affairs Department. She designed the corporate logo for Aboriginal Coordinated Care Trial. Her vibrant and distinctive work Emu represents her cultural beliefs, values to country and her connection to her people, the Worimi people; past and present.
When Mandy first saw Emu reproduced on a commercial vehicle in different colours and with some elements either omitted or distorted, her first reaction was stunned disbelief. She still held the copyright in the painting and had not authorised its reproduction in this case. Her moral rights were also infringed; she was not attributed as the artist and the distortions of her work breached her right of integrity in the work.
Tobwabba Art, an artists’ collective, representing Worimi artists creating contemporary coastal Aboriginal art, wrote on her behalf to the company which owned the vehicle. That letter of complaint was ignored and Mandy turned to Terri Janke, a prominent Sydney solicitor specialising in protecting Indigenous cultural intellectual property. Ms Janke referred her to Arts Law’s Artists in the Black casework service. Sydney law firm Clayton Utz, as longstanding supporters of Arts Law, agreed to take Mandy’s case on a pro bono (free of charge) basis. Intellectual property litigation senior associate Nicholas Tyacke, and Partner Peter Knight, worked more than 140 hours to reach a resolution for Mandy. They enlisted the aid of well known Sydney barrister Richard Cobden SC who also provided his services on a pro bono basis. As Peter Knight has observed, ‘The cost of running a copyright infringement case is so substantial that it’s beyond the reach of most artists to take legal action to protect their rights.’ Clayton Utz commenced proceedings on behalf of Mandy in the Federal Magistrates Court alleging breach of her copyright and her moral rights in respect of the Emu work. Shortly after Mandy was able to reach a settlement with the company. The terms of that settlement are confidential.
This matter raised a number of interesting legal issues. One of the issues was the extent of the copying. Substantial portions of the work had been omitted and other elements were changed – only one emu appeared instead of two, the side panels were omitted, the placement of the various elements relative to one another was different and the various shades of blue were used in place of the striking oranges and pinks of Mandy’s design. There is a common misconception that infringement can be avoided by a mathematical calculation. For example, some people think that if the work is changed more than 10% there is no infringement. This is incorrect. It is not possible to avoid copyright infringement by altering 10% of the original work or by simply changing various elements, such as modifying the design, altering the colours or only using part of the design. In this case, there were a number of substantial changes but the reproduction was distinctively and compellingly a copy of Mandy’s work. Arts Law and Clayton Utz had no doubt that these changes were not enough to avoid liability for infringement.
The changes were also interesting because they went to the heart of Mandy’s moral right of integrity – under section 195AI of the Copyright Act 1968 (Cth) (Copyright Act) an artist has a right not to have his or her work subjected to derogatory treatment. The Copyright Act defines ‘derogatory treatment’ in relation to an artistic work as the doing of anything in relation to that work, ‘that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation.’ Mandy explains that the changes to the work left her, ‘Embarrassed because the artwork was distorted and didn’t reflect the true design I had created.’
There was also the question of the appropriate remedies. The company was not selling the reproductions although it arguably profited by using the work in a way which enhanced or promoted its business. Mandy would never have licensed anyone to use her work in that way – a version so distorted it made her feel ‘embarrassed’.
How can compensation be calculated in respect of an infringement of moral rights? The Copyright Act provides a number of remedies to copyright owners and authors and, in each different case, a different combination of those remedies may be appropriate. Those remedies may include an injunction or court order compelling the infringer to take certain action – whether to cease the infringing behavior or, in the case of a breach of moral rights, issue a public apology, the payment of damages to compensate the artist for any loss the artist sustains as a consequence of the infringement or (alternatively) an order that the infringer ‘account’ or pay over any profits it has made by using the copyright work and a declaration or formal statement by the Court that the artist’s copyright and moral rights have been infringed.
Section 115(4) of the Copyright Act also provides for the payment of ‘additional damages’ to the artist in certain circumstances where for example, the infringement is particularly flagrant, or the court considers it appropriate in light of the need to deter similar infringements or in light of the behavior of the infringer.
Protecting your rights can be an expensive and frustrating process. This case is an outstanding example of how artists shouldn’t be afraid to stand up for their rights and how a partnership between a community legal centre and a commercial law firm gave an artist with limited financial means effective access to the legal system to protect her rights. Mandy said, ‘Being involved in a court case gave me an insight into the legal side of copyright and what my moral rights are. The lawyers that Arts Law passed my case onto treated me with respect and understanding. I was kept up to date on every detail. They were always contactable and answered any questions I had in regards to the proceedings. I learnt to have patience and to trust that a successful outcome would happen.’
Delwyn Everard is a senior solicitor at Arts Law.
Patricia Adjei is the Indigenous solicitor at Arts Law.