Who is liable and what are your rights in the digital space when people use images acquired without consent to sell for personal profit? These questions have arisen from the strong response by Māori about the use of Māori ancestral portraits, Māori cultural pictures and a commissioned portrait of a minor that were being sold without consent by fineartamerica.com.
Today Te Kāea spoke with Kensington Swan's Intellectual Property Partner Jenni Rutter who says NZ is lagging behind when it comes to cultural Intellectual Property Laws in the digital space despite recommendations under the Wai 262 claim.
"We had this fantastic report of recommendations about what we should be doing Māori Cultural IP nothing's really happened there's been some happenings on the haka in particular but really not a coordinated response in terms of what should we be doing to make sure that our laws do protect and look after Māori IP."
When it comes to the case of Zjana Marsh-Richard's portrait being taken for sale without consent on fineartamerica.com Rutter says it is quite complex.
"The person who took the photograph here the 'artist' chap Brent Snow ironically he actually owns the copyright in the photograph that he took because he took it and he's the author, but, there's a good question about the composition as a separate copyright work. There is a really good argument that he has infringed copyright it's just not the traditional kind you would imagine.”
Rutter says Brent Snow has breached the terms and conditions of the website where Zjana's picture was posted.
"The terms and conditions say 'you must as an artist if you're putting an image onto our website, you must be sure that you own the copyright in that image and if it features somebody's likeness the likeness of a real person you must have permission or consent. So Brent Snow has completely breached the terms of this website.”
Rutter says it is likely that the artist is liable and Zjana's family should seek damages from both the website and Brent Snow.