Te Papa's T-shirt exhibition has continued the Museum of New Zealand's habit of putting 'difficult' art work onto the New Zealand stage. The more or less art and fashion display parodied a number of logos creating The Whorehouse from The Warehouse, KKK from KFC and Hip Hop from Tip Top (Sunday Star Times, 25/3/01).
This exhibition raises interesting issues about the legality of parodying artistic works. Parody in western culture stemmed from the time of the Ancient Greeks. Shakespeare parodied Christopher Marlowe's style in the players' scene in Hamlet. It is therefore noteworthy that legal action against Te Papa was mooted for doing what artists have done for centuries.
While some might consider a comparison of The Warehouse to a Whorehouse as being defamatory, in order for a corporation to succeed in a defamation action it must establish financial loss. One presumes that this is on the basis that a company does not have feelings which can be hurt in the same way that you or I could be. In this case it would be difficult to show that The Warehouse had suffered any decline in sales because of a T-shirt displayed on the fifth floor of a museum in Wellington.
However copyright legislation ought to be of greater concern to Te Papa. The logos for the various companies involved are all artistic works and accordingly attract copyright irrespective of their artistic quality. It is therefore a breach of the Copyright Act 1994 to copy the graphic work.
Interestingly, it is not a breach of the Copyright Act to make an adaptation of a graphic work. It is only a breach of the Copyright Act to make an adaptation of things such as plays, novels or music. But nonetheless it is clear that the mug-shot of Colonel Sanders and the swirly design of Tip Top have been copied by the exhibition's artist Shigeyuki Kihara, a 26 year old Japanese-Samoan.
Te Papa in turn, by exhibiting the T-shirts in public, themselves breach the Copyright Act if Te Papa knows, or has reason to believe, that the T-shirts infringe the Copyright Act. Ms Kihara's stated motivation for the exhibition was to criticise the companies involved for their employment policies. A defence in the Copyright Act is available for fair dealing with a work for the purpose of criticism or review of a work. If legal action was brought by any of the aggrieved companies, Te Papa and Ms Kihara would be grasping at threads for a defence. They would need to show firstly, that criticism or review of an image in some way includes criticising or reviewing the entity the image represents and secondly, the artist and museum would need to show that the criticism was "fair".
Such a defence would most likely not be available to a company who parodied, for example, a rival's advertising. In late 2000 Te Papa took umbrage against Lion Breweries' billboards which went up around Wellington advertising beer with the slogan "Te Puba, Our Place" accompanied by a graphic image reputed to look strikingly similar to the infamous Te Papa thumb print. Te Papa objected to this on the basis that Te Papa believed that its brand was being exploited for commercial gain.
While the crooked finger of hypocrisy could be pointed at Te Papa with some justification, their protestations that there is a difference between the T-shirt exhibition and the Lion Breweries advertising may have some legal basis. Fair dealing for commercial gain is not a defence under the Copyright Act. Fair dealing for the purpose of criticism or review is.
The upshot of this is that advertisers, when using parody as a means to grab attention, should be careful that they are not using copyrighted works without permission. Te Papa and artists, on the other hand, will doubtlessly continue to use the tradition of parody to achieve their objective. In doing so, they face a possibility of having damages awarded against them, criminal sanction or injunctions placed on them preventing them from displaying the art.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Quentin Davies is a staff solicitor at the Blenheim Lawlink firm of Gascoigne Wicks. Part of his Masters of Laws degree was concerned with the freedom of expression.
Web site: Gascoigne Wicks
Email: gwqdavies@gascwick.co.nz
June 2001
This exhibition raises interesting issues about the legality of parodying artistic works. Parody in western culture stemmed from the time of the Ancient Greeks. Shakespeare parodied Christopher Marlowe's style in the players' scene in Hamlet. It is therefore noteworthy that legal action against Te Papa was mooted for doing what artists have done for centuries.
While some might consider a comparison of The Warehouse to a Whorehouse as being defamatory, in order for a corporation to succeed in a defamation action it must establish financial loss. One presumes that this is on the basis that a company does not have feelings which can be hurt in the same way that you or I could be. In this case it would be difficult to show that The Warehouse had suffered any decline in sales because of a T-shirt displayed on the fifth floor of a museum in Wellington.
However copyright legislation ought to be of greater concern to Te Papa. The logos for the various companies involved are all artistic works and accordingly attract copyright irrespective of their artistic quality. It is therefore a breach of the Copyright Act 1994 to copy the graphic work.
Interestingly, it is not a breach of the Copyright Act to make an adaptation of a graphic work. It is only a breach of the Copyright Act to make an adaptation of things such as plays, novels or music. But nonetheless it is clear that the mug-shot of Colonel Sanders and the swirly design of Tip Top have been copied by the exhibition's artist Shigeyuki Kihara, a 26 year old Japanese-Samoan.
Te Papa in turn, by exhibiting the T-shirts in public, themselves breach the Copyright Act if Te Papa knows, or has reason to believe, that the T-shirts infringe the Copyright Act. Ms Kihara's stated motivation for the exhibition was to criticise the companies involved for their employment policies. A defence in the Copyright Act is available for fair dealing with a work for the purpose of criticism or review of a work. If legal action was brought by any of the aggrieved companies, Te Papa and Ms Kihara would be grasping at threads for a defence. They would need to show firstly, that criticism or review of an image in some way includes criticising or reviewing the entity the image represents and secondly, the artist and museum would need to show that the criticism was "fair".
Such a defence would most likely not be available to a company who parodied, for example, a rival's advertising. In late 2000 Te Papa took umbrage against Lion Breweries' billboards which went up around Wellington advertising beer with the slogan "Te Puba, Our Place" accompanied by a graphic image reputed to look strikingly similar to the infamous Te Papa thumb print. Te Papa objected to this on the basis that Te Papa believed that its brand was being exploited for commercial gain.
While the crooked finger of hypocrisy could be pointed at Te Papa with some justification, their protestations that there is a difference between the T-shirt exhibition and the Lion Breweries advertising may have some legal basis. Fair dealing for commercial gain is not a defence under the Copyright Act. Fair dealing for the purpose of criticism or review is.
The upshot of this is that advertisers, when using parody as a means to grab attention, should be careful that they are not using copyrighted works without permission. Te Papa and artists, on the other hand, will doubtlessly continue to use the tradition of parody to achieve their objective. In doing so, they face a possibility of having damages awarded against them, criminal sanction or injunctions placed on them preventing them from displaying the art.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Quentin Davies is a staff solicitor at the Blenheim Lawlink firm of Gascoigne Wicks. Part of his Masters of Laws degree was concerned with the freedom of expression.
Web site: Gascoigne Wicks
Email: gwqdavies@gascwick.co.nz
June 2001
August, 2001
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