Daubism: Copyright Law and Artistic Works
| Author: |
Matthew Rimmer BA (Hons), LLB (Hons), PhD (UNSW)
Lecturer, Australian National University Faculty of Law
|
| Issue: |
Volume 9, Number 4 (December 2002)
|
Acknowledgement: The author is grateful to Dr Kathy Bowrey of the University of New South Wales for her comments on this paper. He
is indebted to his informant Manne Schulze.
Contents
- An artistic controversy over a group of landscape painters called the Daubists provided impetus for copyright law reform in Australia
in the early 1990's.
- In the first exhibition of Daubism in 1991 driller Jet Armstrong painted a crop circle over a painting of the Olgas by Charles Bannon
- an artist, print-maker, and the father of the State Premier at the time, John Bannon. He called the resulting work, Crop Circles
on a Bannon Landscape. Armstrong also inserted an inverted crucifix over a painting of the Flinders Ranges by Bannon, and renamed
the work The Crop Circle Conspiracy Landscape. In response, Bannon took legal action against Armstrong in the Federal Court of Australia
on the grounds of false attribution and defamation. He won an interlocutory injunction against Armstrong and the gallery, but then
reached a settlement with the Daubists. An anonymous buyer purchased the work for $650 on the condition that it was returned to
the painter. In his fight against the Daubists, Bannon received help and support from the National Association for the Visual Arts
(NAVA). This professional group used the controversy to campaign for the reform of copyright law - in particular, the need for a
moral rights regime.
- The artistic controversy over the Daubists was a catalyst for the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth) in Australia. It offers an illuminating case study of the operation of copyright law in the visual arts. First, the case
suggests that judges in a common law system will interpret moral rights, in light of jurisprudence about copyright law and defamation
law. As David Vaver observes:
A new right may be introduced and treated more sympathetically in a jurisdiction where it resembles existing rights, or flows logically
from accepted principles, than where it is a completely new transplant on to inhospitable soil. Writers in both the United States
and the Commonwealth have therefore sought to demonstrate the presence of common law analogues to moral rights of attribution and
integrity.[1]
- Second, the conflict highlights the industry-specific approach of the moral rights regime. The visual arts community engaged in special
pleading, and demanded legislation sympathetic to its particular circumstances. As a result, the legal scheme has a particular impact
upon the visual arts community - especially in relation to the scope of the moral rights, the defence of reasonableness and the impact
of consent provisions. Third, the controversy foreshadows a number of future developments in relation to copyright law and the visual
arts. In particular, it anticipates the introduction of a right of resale to ensure that artists can flourish in the marketplace.
- The dispute over Daubism was understood differently within various interpretative communities, social fields, and discursive domains.
It operated within a number of institutions: the artistic community, the legal system, and the media. Part 1 considers the dispute over Daubism in the artistic community of Adelaide. It examines the debate over the meaning and nature of
landscape painting in terms of the movements of romanticism, modernism, and post-modernism. Part 1 examines the dispute over Daubism in the legal system. Bannon sued Armstrong in the Federal Court alleging that the treatment of
his painting was defamatory and a breach of the Copyright Act 1968 (Cth). Part 3 focuses upon the dispute over Daubism in the media. Bannon used The Adelaide Advertiser and other syndicated papers to support the
litigation and to push for the introduction of a moral rights regime. In response, the Daubists have used the media to defend their
reputation, and oppose the implementation of moral rights.
- The Daubists were originally a group of South Australian visual artists. Manne Schulze recalls that the name of the group refers to
the crude and sloppy techniques used in idealised landscape paintings in Australian art:
We did not choose this name because our main concern was to daub over other people's paintings but in reference to our own deliberately
badly painted landscapes and other works that formed the basis of the exhibition. As such not a brilliant new idea, but another
variation of a continuing investigation of the Australian bushscape.[2]
- The Daubists re-used the work of other people as a basis for this analysis in much the same way as lots of artists recycle all sorts
of found objects and ready-mades. Their art form involved painting directly onto the canvasses of other artists, and in some cases
cutting up the original and rearranging the segments.
- In the first exhibition of Daubism in 1991, Armstrong painted a crop circle over a painting of the Olgas and called the resulting
work, Crop Circles on a Bannon Landscape.[3] He also inserted an inverted crucifix over a painting of the Flinders Ranges by Bannon, and renamed the work The Crop Circle Conspiracy
Landscape. He also subsequently cut up a painting by Bannon and used the pieces to form a new work, which depicted the Queen holding
a wine glass and carrying out an obscenity. In the first Adelaide exhibition, Manne Schulze daubed photographs. He moved onto reusing
found paintings in the follow-up show. The other two painters - Chris Gaston and Andy P - produced, in their own judgment, 'sloppy'
pastiches of landscape paintings.
[3]The dispute over Daubism was a microcosm of a larger debate about appropriation going in the artistic community. The anthology, What
is Appropriation?, gives a sense of the range and diversity of appropriation art within Australia.[4]
The practices of quotation, borrowing, and copying have been employed in a diverse range of contexts - landscapes, political art,
feminism, ethnicity, race and identity. Its practitioners include post-modernists like Imants Tillers,[5]
queer painters such as Juan Davila,[6]
digital photographers such as Hou Leong[7]
and Indigenous iconoclasts - Gordon Bennett,[8]
Destiny Deacon,[9]
and Tracey Moffatt.[10]
- There has been a division within the artistic community about the legitimacy of such methods. The conflict over Daubism touched upon
the anxieties about authorship and copying that were present in the artistic community.
- The dispute over Daubism prompted a debate in the artistic community over the nature of landscape painting in Australia. The romantics
depict nature as an Arcadia, an idyll, a pastoral scene. In his painting of Olgas, Bannon hopes to inspire sublime feelings of awe.
He suggests that the Australian landscape is a wilderness untouched by human contact. The modernists are interested in the alienation
of people from nature. They emphasise the intrusion of urban expansion and industrialisation onto the rural landscape. The post-modernists
go further and claim that nature is a simulation in the age of mass media. By superimposing a crop circle onto a painting of the
Olgas, Armstrong suggests that the natural landscape is not a sublime wilderness untouched and unsullied by human contact. He indicates
that the pastoral image is a product of invention, paranoia and trickery. The crop circle is a symbol of paranormal superstitions,
conspiracy theories, and scientific hoaxes.
- Bannon defended his work in terms of romantic authorship, individuality, and possession. He emphasised the professional status of
the artist: 'My concern is the principle involved in someone defacing or altering a professional artist's work, whether good or
bad, and exhibiting it under his own name and creative output.'[11]
Bannon spoke about the appropriation of his work in terms of violation and desecration. He felt that Armstrong had done the equivalent
of 'adding some drivel to Shakespeare's Macbeth and calling it your own'.[12]
- The literary comparison to the Bard is an interesting one. Bannon assumes that Shakespeare's Macbeth is a work of romantic genius
and originality, and by extension suggests that his own art deserves a similar respect. However, he overlooks the evidence that
the Bard borrowed much of his material for the Scottish play from other historical and dramatic works.[13]
Bannon was conscious that he might be portrayed as encouraging censorship. He declared that he was not an enemy of any art school
and was a champion of all art. However, he noted: 'I don't think anyone has the right to grab anyone else's painting and do what
the hell they like, which indeed is what happened'.[14]
The Adelaide artist ignores that much of modern art and post-modern art is based upon the reuse and re-cycling of past work.
- The Daubists were critical of the romantic ideas of authorship and creativity. Schulze declares:
The notions of the artist as a sublime creator and his/her art being sacrosanct, as well as the still prevalent pseudo-religious veneration
and relic-like treatment awarded to some art objects, can be traced back to social conditioning.[15]
He was unimpressed by the display of wounded professional pride by Bannon.[16]
Furthermore, it was suggested that Bannon was being a little precious about the sanctity of the art. It is not uncommon for painters
to paint over another canvas. Bannon himself acknowledged that in his student days he bought canvases and stretches at sales and
painted new paintings over other works. He said: 'But I never added, detracted, or trivialised another's work or held it up for
ridicule'.[17]
Even a painter who espouses romantic ideals of authorship and creativity is not above a form of Daubism.
- Schulze is well aware of a long standing tradition in modernist art to appropriate pre-existing images - the ready-mades of Dada,
the theft of popular culture in pop art, and the political subversions of the Situationists.[18]
He has been particularly influenced by the work of the Danish Situationist Asger John:
The person who should be mentioned as the daddy of Daubism is the Dane Asger Jorn. He was a member of a subgroup of the Situationists,
the Affichists, in the late fifties and early sixties. They were interested in the basics, what makes art art. Stuff like: why
is it that graffiti is considered vandalism, while quite similar material is presented in galleries for good money? Specifically
they were into tearing apart and then reassembling of the brightly coloured posters (affiches) that were thrown up by the infant
consumer societies in post World War II Europe. And out of his interest in graffiti, Asger Jorn started to paint over other people's
paintings. He even had a name for the products: detournements, which translates as diversions. In line with the revolutionary
vibes of the sixties he intended them to be conscious investigations into plagiarism and subversion. Some active analysis of some
of society's value systems, I guess.[19]
- The Daubists are inheritors of the modernist movements of Dada, pop art, and Situationism. They share a similar anarchic approach;
they use ready-mades; and they also display a subversive attitude towards the political and economic system.
- Under attack in the media, Armstrong claimed that the paintings made 'a classic post-modern art statement'.[20]
He said: 'In fact, I would probably go as far as to say that they probably signify the death of landscape painting'.[21]
Schulze concurred with Armstrong that Daubism belonged to the movement of post-modernism. The practices of the group serve to undermine
notions of authorship, originality, and art. Schulze explains that Daubism was sympathetic to post-modern art theory:
Daubism needs to be seen in this tradition of inquisitive investigation into the very nature of art. The Daubist act of over-painting,
or more generally, the re-using and recycling of originals sits comfortably with this analysis. It is a neutral and clinical process
which does not intend to ridicule or 'deface' the original (although the appearance of the original might be changed in the process),
or tarnish the honour and reputation of the author of the original. Instead of being an act of philistinism, the Daubist principle
has been and still is to embrace original material which would not have seen the inside of an art gallery under normal circumstances,
and by re-contextualising it, to lift it to a new plane so it can be appreciated from a fresh point of view. Daubism creates the
new by using the old.[22]
- However, the claim by the Daubists that landscape painting is dead is contentious. There remain a number of promising artistic modes
and methods with which to investigate nature - the minimalism of Fred Williams,[23]
the hyper-realism of Jeffrey Smart,[24]
the lambent work of Mandy Martin, the figurative painting of Gary Shead,[25]
and the naivety and whimsy of William Robinson.[26]
In light of such work, this pronouncement of the death of landscape painting seems to be hyperbole.
- However, there has been resistance from some critics to the theories of post-modernism practised by groups such as the Daubists and
featured in critical art theory journals such as Art & Text. In his career as a reporter, art critic, and television presenter,
Robert Hughes has inveighed against the evils of post-modernism.[27]
He abhors post-modernism because it has come to challenge the fundamentals of his artistic faith: firm critical standards for art,
based on the premise of a demonstrable tradition of great works or masterpieces; a belief and a pride in the unity and continuity
of Western art, the possibilities of moral or spiritual or social or political meaning in art.[28]
- However, Robert Hughes has been hoist by his own petard. He was accused of plagiarising a review of the exhibition held at the National
Gallery of Australia, 'New Worlds from Old, 19th Century Australian and American Landscape Painting', by Patricia Macdonald in a
column in Time Magazine.[29]
In response, Hughes offered a humble apology to the author. He observed: 'I am not a great believer in post-modernist "appropriation"
and I can only ask you to believe that this was due to inattentiveness, and not to premeditated larceny'.[30]
His defence was that the taking of the review was excusable because it was unconscious. It is little wonder that the art critic
was the target of the Daubists in their latest exhibition in 1997.
- It is common for artistic disputes between artists to be settled, if not resolved within the visual arts community of painters, critics,
dealers, gallery owners, and curators. The members of the society can be held accountable to the ethical standards and norms of
their peers. Therefore, along with taking legal action for copyright infringement, Bannon could have addressed his art peers about
the daubing of his paintings. Social pressure could have been placed on the Daubists to offer an apology, relinquish their exhibition
space, or lose public funding from the government arts funding bodies. If such action was ineffective, the landscape painter could
still take legal action.
- Bannon did argue that the daubing of his painting was a violation of 'natural justice', quite apart from being an infringement of
copyright. He alleged that the Daubists had transgressed the ethical standards and norms of the artistic community, and should therefore
be treated with opprobrium.
- Armstrong denied that it was his intention to cause offence: 'It has got nothing to do with that Charles Bannon painted it or that
he is the Premier's father or anything personal at all'.[31]
Similarly, Schulze absolved his colleague of any ethical wrongdoing or misdemeanour:
As far as I am concerned, driller Jet Armstrong did not intend to make fun of Charles. He just did something to paintings that were
rejected at auction and then passed on to him. And in no way did he try to obscure the identity of the original. The whole thing
was just blown out of proportion by the legal action of the first family and by Charles' idea of what was going on, which totally
missed the point.[32]
- However, in the face of mounting acrimony, Armstrong sought to mollify his critics. He agreed that he was morally bound to ask Bannon
for his permission to carry on with the exhibition, even though he was not legally bound. However, Armstrong stopped short of giving
an apology. He was not ready to disown the work that he had created according to the principles of Daubism. Bannon was not placated
by this conditional sign of respect granted by Armstrong.
- Publicity of the dispute was not without consequences for the artists. The Daubists were first exhibited at the Chesser Gallery by
Garth Pye; and then at the Art Images Gallery by Colin Burgen. However, the group then encountered difficulties in finding space
for their exhibitions in Adelaide. Vena Swain said that she would refuse to hang such paintings because it was reprehensible.[33]
Another Adelaide gallery owner Paul Greenaway was unwilling to hold an exhibition of Daubism. Schulze observed: 'Paul Greenaway
still thinks that the whole Daubism idea was pushed to a state of fame and infamy by The Adelaide Advertiser, and that there is not
much substance behind it partially because it has been done in various forms in the past'.[34]
- The Adelaide galleries seemed reluctant to exhibit Daubism because they did not want to be tarnished by any controversy. They were
also concerned about the political and legal repercussions - such as the threat of a legal action for secondary infringement of copyright
for displaying illegal work.[35]
The Sydney galleries demonstrated less concern. The Michael Nagy Gallery was happy to show the third Daubism exhibition. This
Sydney show was unaccompanied by any political scandal or legal action at all.
- The Daubists and other appropriation artists can also be discouraged by a lack of public arts funding from government arts bodies.
The Australia Council plays an active role in copyright law in terms of arts policy and funding. Its mandate was to carry out the
restructuring necessary to ensure that Australian artists' incomes are improved by new technologies, that Australian copyrights are
exploited to the full and that Australian talent is employed in the new broadcasting technologies.[36]
- The Australia Council also funds a number of advocacy organisations, including the Australian Copyright Council, the Arts Law Centre
of Australia, and the National Indigenous Arts Advocacy Association. The State and Territory Government arts agencies also match
this funding. The Australia Council has campaigned for the introduction of moral rights. It released a booklet in 1991 as a first
step in educating the artistic community about possible abuses of rights and the moral obligations one artist should observe when
dealing with the work of another.[37]
- The Australia Council's process of peer assessment is also informed by a respect and deference for copyright law. The denial of public
funding would be a discouragement to artists who practice appropriation. The Australia Council has also influenced State and Territory
Government arts agencies in regard to this policy about copyright infringement.
- The dispute over Daubism was not resolved in the artistic community. More prominent artists have weathered storms of appropriation
because of their status and reputation in the artistic community. Imants Tillers, for instance, has received little criticism for
his strategies of appropriation. His paintings continue to receive glowing critical reviews; his paintings are hung in respected
Australian galleries; and his work is sold for significant sums of money by dealers. By contrast, the Daubists were more vulnerable
to ethical criticism and condemnation because they were on the fringe of the artistic community. As Schulze points out: 'driller
Jet Armstrong was an outsider in the Adelaide art scene, because he never attended art school. And suddenly this self-acclaimed
artist, without the formal tertiary education and without any help from friends or cronies, overtook all these important-artists-in-waiting,
and lots of people couldn't handle it'.[38]
- Yet, the Daubists had little to lose because they were outsiders. They have no expectation of government funding or easy access to
exhibition space. As a result, Bannon was dissatisfied with the ethical measures available against the Daubists. He shifted the
dispute from the visual arts community into the realm of the legal system.
- Charles Bannon was represented in the Daubism dispute by the barrister, Robyn Layton. She has a distinguished record as a solicitor,
a barrister, and a policy-maker. After starting off as a solicitor in the South Australian law firm Johnston Withers, Robyn Layton
went onto become a barrister, and a Queen's Counsel. She specialises in industrial relations law and administrative law. Furthermore,
Robyn Layton has a close personal connection to Bannon. She was the first wife of his son, John Bannon. On behalf of Bannon, Layton
sought an interim injunction from Justice von Doussa, the Federal Court judge hearing the case over the Daubism dispute. His Honour
granted an interim injunction against Armstrong and his gallery to stop them from exhibiting the painting or selling it to buyers.
- In the legal action, the Daubists were in a strong legal position, because it did not appear that they had violated the economic rights
of the artist, Bannon. They had not used or reproduced a substantial part of his work. An arts lawyer, Natasha Serventy, commented
that the issue of copyright infringement did not arise if the owner of the painting had not reproduced the work of Bannon:
If Armstrong owns the works and has the property right to the works, he has the right to do with them what he will and that includes
cutting them up, painting them over, improving them, destroying them, exhibiting or selling them. But the fact that Charles Bannon
is disturbed by what has happened to his work is in fact evidence, if you like, for some aspects of moral rights. It seems as though
the whole idea of it is quite a subversive one and more of a political statement than a desire to improve upon the work.[39]
- A recent Canadian decision reinforces this point about the right of reproduction. In the case of Galerie d'Art du Petit Champlain
v Theberge, the Supreme Court of Canada considered whether an artist could stop galleries from transferring authorised reproductions
of his artistic works from a paper poster to a canvas.[40]
The majority of the Court concluded that no new reproductions of the artist's work had been brought into existence, and therefore
there was no infringement of the artist's right of reproduction. It took the view that Parliament intended modification without
reproduction to be dealt with under provisions dealing with moral rights rather than economic rights. Binnie J observed: 'Economic
rights should not be read so broadly that they cover the same ground as the moral rights, making inoperative the limits Parliament
has imposed on moral rights'.[41]
- First the Daubists question the relevance of the legal culture to artistic practice. Schulze comments:
It becomes very difficult for the law to have clearly justifiable opinions. What a judge would be interested in would be the classical
issues - was there an infringement of copyright? was it done for financial gain? was the integrity of the original author harmed?
Judges can only assess situations according to established criteria. Obviously, contemporary art is about establishing new criteria.
The legal side cannot see all these things, because they cannot be specialists in a field that hardly exists. But it should be
the job of committed artists to establish new perspectives and paradigms.[42]
- An artist will infringe the economic rights of the owner of an original work if they use or reproduce a substantial part of that work
without permission. For instance, the Canberra artist Hou Leong encountered legal difficulties because he did not first get permission
or authorisation before scanning his Chinese face onto a series of copyrighted photographs of Australian icons and archetypes. [43]
The photographer of the 'I'm Australian as Ampol' image asserted his right of restraint as grounds for payment of a licence fee.
Hou Leong was advised by the Arts Law Centre of Australia that he was open to legal action for a copyright infringement because
he had reproduced a substantial part of the work. He was forced to negotiate and gain copyright permission to use the series of photographs.
- Second, the Daubists support an expansive reading of the doctrine of fair use. In reply to such accusations, artists engaged in appropriation
have sought protection from the defence of fair dealing. They claim that they are not guilty of copyright infringement because they
are engaged in criticism and comment. However, there has only been limited protection provided under the defence of fair dealing.
- The United States decision of Rogers v Koons is a cause célèbre about copyright law and post-modern art.[44]
The case involved a photographer, Art Rogers, who alleged that an artist, Jeff Koons, and his gallery had infringed his copyright
in a photograph of a couple with a litter of puppies by creating a sculpture called a 'String of Puppies'. Jeff Koons argued that
he was part of a tradition of post-modern art, which incorporated popular images and icons into art work to comment critically both
on the incorporated art and the political and economic system that created it. The Court of Appeals rejected Jeff Koons' defence
that his work was a fair use of copyright material for the purposes of criticism or comment. It held that the copied work must be,
at least in part, an object of the parody, and not just a critique of society. It found that Jeff Koons' sculpture was not a parody
of the photograph or its owners, although it accepted that the work was a satire of society. The Court of Appeals stressed that Jeff
Koons did not transform the original work by turning the photograph into a sculpture. It found that the work was just a copy or
a pastiche. The Court of Appeals was also hostile towards Jeff Koons' substantial profit from his intentionally exploitative use
of Rogers' work. It emphasised Jeff Koons' conduct in tearing the copyright mark off a Rogers notecard prior to sending it to the
Italian artisans to create the work.
- The case of Jeff Koons has divided and fragmented the artistic community.[45]
He has been hailed as a martyr in the cause of artistic expression and free speech by some commentators. The artist has also been
condemned as a pariah who has flouted the authority of copyright law with contempt. It might be thought that the Daubists would
show some solidarity with Jeff Koons given that they are both working within the framework of post-modern art. However, that it
is not the case. In an interview, Schulze displays little sympathy for the plight of Jeff Koons, because of a belief that his work
undermines the cause that they are supporting:
The Jeff Koons case is a very strange one. Jeff Koons is basically a businessman. He has come up with a few striking post-modern
icons - like his famous bunny. But I do not think that he is the best artist on the planet. That is my personal viewpoint. In
this specific case, he obviously used a photograph of a distinct photographer. He did not do anything to that photograph. He just
had it turned into a sculpture by artisans. My guess would be that the original inputs and ideas came more from the photographer
than from Koons who just got hold of the photograph and passed it onto his carvers. In this particular case, my personal opinion
is that the photographer should have received copyright fees. Jeff Koons went to court, stonewalling, insisting on his right of
artistic expression. He has done more harm to the cause than anything else. It is a clear breach of copyright as far as I am concerned.[46]
- Schulze attempts to distinguish the case of Jeff Koons from the Daubists in a number of respects. He does not want the group to be
associated with this disreputable artist. First, Schulze emphasises that the Daubists are interested in working with original artistic
works. They are not interested in the mass marketing of copies. Second, Schulze stresses that the Daubists are engaged in the transformative
or productive use of copyright works.[47]
He suggests that Jeff Koons is merely involved in the reproduction of artistic works. Schulze falls back on the old distinction
between money and art to distinguish between a 'good' and a 'bad' post-modernist. He claims that Jeff Koons is complicit with the
capitalist marketplace. By contrast, Schulze suggests that the Daubists display a critical engagement.
- Third, the Daubists are rather ambivalent about whether artists engaging in artistic appropriation should pay fees to obtain licenses
to use copyright work. Schulze is concerned that the visual arts has become dictated by commercial interests, so that art has been
turned into a commodity. However, he concedes that private contracts between owners of art and creators can prevent the grievance
caused by the possibility of having one's work recycled. By contrast, the professional organisation for visual artists is much more
enthusiastic about licensing of copyright work. Since the late 1980s, NAVA advocated the establishment of a visual arts copyright
collecting society. It has argued that collective administration would overcome visual artists' lack of understanding of legal rights,
weakness of bargaining position, and inadequate enforcement mechanisms. After a report by Shane Simpson, the Federal Government
set up a collecting society for the visual arts called VI$COPY in 1995.[48]
It was set up under the Creative Nation program, and continues to receive support as a new company in the copyright industry from
the current government. It remains to be seen whether VI$COPY will be a viable broker between copyright owners and users.
- In light of the strong position of the Daubists, the lawyers acting for Bannon were forced to rely upon radical arguments about false
attribution and defamation.
- In the absence of any moral rights legislation, Robyn Layton brought an action for damages or an injunction under s 194 of the Copyright Act 1968 (Cth) on the grounds that there was a breach of duties in relation to false attribution of authorship. She argued that Armstrong
and the gallery was in breach of s 190 of the Copyright Act 1968 (Cth) because the painter superimposed his own signature over the name of Bannon, in such a way to imply that he was the author of
the work. Alternatively, she argued that Armstrong and the gallery was in breach of s 191 of the Copyright Act 1968 (Cth) because they were falsely attributing the authorship of a work that had been altered without the permission of the copyright
owner.
- Such claims seem to be well-founded. However, the case law suggests that this set of statutory provisions only have a limited operation.
In Crocker v Papunya Tula Artists, the Federal Court rejected a claim of false attribution in relation to the authorship of a commentary
on a catalogue of Aboriginal art, stating that s 191 required a 'material alteration' to have been made and that the alterations in this case were minor and did not affect the character
or reputation of the author in any way.[49]
- Furthermore, the statutory provisions at the time conferred no positive right on an artist to be known as the author of the work.
Bannon would have no remedy had the signature been erased altogether. There would have been nothing to stop the Daubists from daubing
over his paintings in the future if they got rid of his name altogether. However, that loophole has been closed with the introduction
of the Copyright Amendment (Moral Rights) Act 2000 (Cth).
- Due to the limited moral rights protection available, Robyn Layton also relied on defamation law to protect the artistic integrity
of the painting by Bannon. She argued that this was a 'ground-breaking action'.[50]
There were a number of limitations in this case.
- First, defamation law has been applied to the written and spoken word and cartoons but it is not usually applied to artistic works.
However, in spite of the unusual nature of the publication, the form in which the defamation is communicated is irrelevant.
- Second, the Daubists argued that they were not attacking the personal reputation of Bannon or his art style at all. Rather, they
were commenting upon the nature and philosophy of landscape painting.
- Third, although Bannon may have considered that the Daubists had harmed his reputation, it is possible that a reasonable person would
not consider it sufficiently offensive to warrant a finding that the defendant had been defamed.
Fourth, in defence to the action
in defamation, the Daubists could have raised the defence of fair comment.[51]
They could argue that the comment is a statement of opinion, fairly held, on a matter of public interest. The Daubists could give
range to idealistic notions of the freedom of artistic expression and political speech. Schulze said: 'It would equal censorship
and constitute a serious restriction on the freedom of expression'.[52]
However, there would be a debate over whether the Daubists were fair towards Bannon, or motivated by feelings of spite or ill will.
- Finally, even if the defamation action was successful, there would be no guarantee of anything more than nominal damages. In the
contemporaneous case of Meskenas v Capon, the court found that Edmund Capon had defamed in his criticism Vladas Meskenas' painting
of Rene Rivkin, which was entered into the 1988 Archibald Prize competition for portraiture.[53]
However, it was a pyrrhic victory because the jury only awarded $100 to Meskenas. This fate could have also befallen Bannon.
- In the end, the dispute was resolved between the parties outside the arena of the Federal Court. So rather than rely upon the decision-making
ability of the Federal Court, the barrister Robyn Layton preferred to maintain control over the controversy, and seek a settlement.
Her claims about copyright law and defamation law were allowed to stand unopposed and unchallenged outside the courtroom. The lawyer
Layton brokered a settlement. A buyer bought the work for $650 on the condition that it was returned to Bannon. The identity of
the purchaser was anonymous - the artist denied that he had bought the painting back himself. Armstrong agreed to settle the case
with Bannon because he could not afford to run a legal case. He was upset about the lack of access to justice:
I was placed in a situation where I had no other option but to accept. I don't have the money to fight for my right to express myself.
I'm also upset that Charles Bannon will not let people decide for themselves whether or not what I've done is wrong. I have sold
it. It is now out of my control.[54]
- Armstrong received bad legal advice, and was scared that going to court was going to cost him a lot of money. He did not know of
his strong legal position that he had not reproduced the original work, and he had criticised the work, not the author. The rules
of copyright law, and defamation law, were undermined by legal practices. Robyn Layton used the threat of legal power to persuade
Armstrong to submit and accept her offer of a settlement. Her opponents did not have the legal expertise to question whether this
claim was valid.
- It is striking that the Daubism dispute was played out not only in the artistic community and the legal system, but also in the media.
Bannon and the Daubists debated the merits of the legal action, and the need for moral rights legislation in the public domain.
The media was guided by a number of norms and standards about appropriation. Robert Hughes comments that the public is 'conditioned
by its museums, by the art market and by the pervasive journalistic attitude that finds works of art interesting only if they are
fabulously expensive or forgeries, or ideally both'.[55]
- The mass media was not interested in the aesthetic issues about Australian landscape painting or ethical questions about the rights
and wrongs of Daubism. It paid scant attention to the legal technicalities about copyright law and defamation law. The mass media
was interested in the political and economic connotations of the Daubism dispute. It emphasised that the daubing of the paintings
was an attack upon the personal reputation of Bannon, the first family, and the integrity of the State of South Australia. It also
stressed the financial rewards at stake in the dispute.
- In the wake of the Daubism dispute, Bannon sought to highlight the lack of moral rights legislation in Australia: 'It was my firm
intention to bring this ambiguity and discrepancy in the law into public arena and politicise it'.[56]
Susan Reid, of NAVA, supported a call by Bannon for more protection for the moral rights of the artists.[57]
The professional organisation agitated for the introduction of a scheme of moral rights.
- The Adelaide Advertiser provided extensive coverage of the conflict, and its developments. Samela Harris broke the story about the
Daubism dispute in her article 'Arts Uproar over Defaced Painting'.[58]
It received generous front-page coverage, with a picture of Armstrong with his controversial work. The following day there was
a discussion of the litigation brought by Bannon against the Daubists in the Federal Court.[59]
A week later, there was a report upon the resolution of the dispute.[60]
They emphasised the wider implications of the dispute for the introduction of moral rights legislation protecting visual artists.
Furthermore, The Adelaide Advertiser has been willing to revisit the aftermath of the Daubism dispute. It reported upon a new controversy,
in which Armstrong had cut up one of the paintings of Bannon.[61]
It also covered the new exhibition of the Daubists in The Adelaide Advertiser.[62]
- The stories by The Adelaide Advertiser were picked up by national newspapers, such as The Australian[63]
and The Age.[64]
As a consequence of this attention, the Daubism dispute went beyond the local confines of South Australian society, and became a
matter of national importance.
- The media represented the Daubists as transgressive artists, calling them 'vandals', 'graffitists' and 'thieves'. This imagery lent
support to Bannon, and his push for the introduction of moral rights. Schulze reflects that the media frenzy shifted the focus of
the dispute away from the analysis of the significance of landscape painting in the post-modern world. He observes that 'the act
of recycling the work of one artist by another was portrayed as cultural vandalism, and the symbolic meaning of over-painting the
work in question was interpreted as a personal attack against not only Bannon, but the whole first family and even the integrity
of the South Australian Government'.[65]
- In response to this media attention and vigorous lobbying from the visual arts community, the Federal Government released a Discussion
Paper on moral rights. Not surprisingly, the prime example in the Discussion Paper was the Daubists. It presumes that the dispute
over Daubism was a representative case of moral rights violation.[66]
It cites the dispute as evidence that there was insufficient protection under the present law, and there is a need for the introduction
of a scheme of moral rights protection. The Federal Government introduced the Copyright Amendment Bill 1997 (Cth) into Parliament. However, after protest from the film industry, this bill was withdrawn. After further consultation, the
Federal Government introduced the Copyright Amendment (Moral Rights) Act 2000 (Cth), which has since passed into law.
- Under a regime of moral rights, Bannon could maintain that Armstrong was culpable for violating the moral right of attribution.[67]
He could allege that the Daubist failed to name him as the artist of the paintings in a clear and reasonably prominent way. In
support of his case, Bannon could point out that Armstrong erased his signature, and he was not given enough credit. He could complain
that it would be unsatisfactory that the artist's signature alongside that of Armstrong because dual attribution would be give rise
to uncertainty and confusion. In reply, the Daubists could claim that on occasion they do provide proper acknowledgment of the origins
of the paintings that they daub. For instance, Armstrong refers to Bannon in the title of the painting, Crop Circles on a Bannon
Landscape. The problem here seems one of excessive attribution. However, the Daubists are rather contrary about the credits that
they provide for the paintings. They supply their own titles for the daubed works; they do not refer to the originals. Moreover,
the Daubists sometimes omit to acknowledge the source of the artistic works at all. For example, Armstrong renamed a daubed painting
of the Flinders Ranges by Bannon, Crop Circle Conspiracy Landscape. Such inconsistencies could expose the movement to legal actions.
- Furthermore, Bannon could also claim that the Daubists were guilty of the infringement of the moral right of integrity.[68]
He could give range to his romantic feelings of violated authorship and complain that his work was subjected to derogatory treatment,
which was prejudicial to his honour and reputation. The Daubists could claim that the act of over-painting is a neutral and clinical
process, which does not intend to ridicule the original, or tarnish the honour and reputation of the author of the original. They
could reiterate their claims that recycling a work of art will lift it into a new context so that it can be appreciated from a fresh
point of view. Although they might take such artistic intentions on notice, the courts might not take kindly to the claims of the
Daubists. They would be unwilling to accept that the defacement of a painting was 'reasonable in all the circumstances'.[69]
- It is possible that the courts would also take prim objection to the salacious content of the work of the Daubists. For instance,
it could take offence at the Bannon painting cut by Armstrong and turned into a picture of the Queen holding a wine glass and carrying
out an obscenity. Thus the Daubists could be punished under the moral rights regime for failing to respect the integrity of the
work that they are using to daub over.
In the wake of the dispute, Schulze became interested in the legal issues surrounding the
Daubist affair:
Personally, I only became more interested in the legal issues a few years after the Bannon/driller incident when I ended up having
a relaxed lunch with an intellectual property rights lawyer from Adelaide, Bill Morrow.[70]
He put the whole issue into context for me, and it dawned on me that there were dodgy assumptions and inconsistencies in the laws
applying to Daubism. That is when I decided to summarise my own view point. I thought that there was a lack of insight in legal
circles of what one can do or even should do in the visual arts. If nobody else does it, who is going to do it? I thought it had
to be me.[71]
- Enlightened by this dialogue, Schulze became a self-publicist, campaigning for copyright law reform in the media. He spread his message
on underground channels of communication - such as manifestos, magazines, and alternative radio. The Daubists have sought to correct
the public record. However, they have been a little more cautious and circumspect in the managing the media.
- Schulze released a polemical tract entitled, 'The Death of Daubism? The Case against the Introduction of Moral Rights'. He offers
a historical background to the push for the introduction of moral rights, and a partisan account of the dispute over Daubism. Schulze
questions the philosophical basis of moral rights, which posits a personal connection between the artist and their work. He observes
that the treatises of Idealist philosophers like Hegel and Kant are of little significance for artistic practice in the materialistic
reality of the late 20th century. Schulze concludes that the moral rights legislation will be unable to outlaw Daubism:
Whatever the outcome of the current debate, artists will keep re-using 'found' images. Daubism is only the most concerted effort
based on this concept whose time not only has come, but which is well advanced and appears in many forms and disguises. Outlawing
Daubism would lead to a rather silly cat and mouse game which ironically could represent the perfect epitome of the current state
of the arts.[72]
The article was featured in Artlines, a journal published by the advocacy organisation Arts Law Centre of Australia. It draws upon
a mixture of art history, legal doctrine, and journalistic opinion to communicate its message to the public. The artist attracted
the attention of the Arts Law Centre of Australia.[73]
He also conducted interviews with a couple of community radio stations in the Sydney region.
- In protest, the Daubists threatened to exploit the waiver provisions in the Copyright Amendment Bill 1997 (Cth), which provided that the creator can waive all or any of his or her moral rights for the benefit of everyone, a particular
person or persons or a particular class of persons.[74]
They saw the waiver provisions as an opportunity of subverting the moral rights legislation that was proposed by the Federal Government.
Schulze planned to attach waivers to the works exhibited at his new exhibition to enable buyers to engage freely in some daubing
of their own. He would be flattered if another person would have daubed one of his own works:
If someone would do something to one of my art works, and re-exhibit it, I would say, 'Beautiful'. Instead of being stored away or
exhibited on a lounge room wall, it again sees the light and is re-exhibited. I would be pleased that someone would think that my
work is worthy of re-using. Obviously that indicates what different views there are about one's personal outpourings.[75]
- The Daubists hope to encourage an endless process of recycling of art works. However, the waiver provisions were removed from the
moral rights legislation - mainly due to the protests for screenwriters in the film industry. However, there were a number of measures
designed to control the operation of moral rights - including consent clauses,[76]
and industry agreements.[77]
So the Daubists would now have to give specific consent to let individuals alter or modify their artistic works.
- Not only does the Daubism dispute touch on matters of moral rights, but it also raises the questions of a right of resale. In this
case, Bannon was upset that Armstrong had been given some of his paintings at an auction, daubed them, and sought to sell them for
money at the Daubists exhibition. Quite apart from his moral concerns about the use of the work, the painter was concerned that
there was no possibility of any economic recompense from the resale of the paintings. The newspaper reports made much of the fact
that Armstrong was selling the work for $650. Yet, without a right of resale, the Daubist was legally entitled to sell someone else's
work and even make a profit.
- NAVA has passionately lobbied the Federal Government to implement a right of resale or the 'droit de suite' in Australia, which is
provided for under the Berne Convention for the Protection of Literary and Artistic Works 1886.[78]
It points out that there is a continuing problem with the lack of legislation to protect the right of creative producers to receive
a royalty from the subsequent sales of their work after its initial purchase. NAVA claims that copyright law discriminates against
visual artists because it is based upon the model of literary works.[79]
It argues that artists are unfairly treated in comparison to authors and composers because the value of the art depends upon the
uniqueness of its physical embodiment, not its mass reproduction - as in books or sound recordings. NAVA argues that a right of resale
would remedy the prejudice against visual artists under the present system of copyright law. It believes that the droit de suite
would give visual artists the counterpart to the right of reproduction or performance in other art forms. NAVA maintains that the
right of resale is a way to ensure that the visual artist is fairly rewarded and is encouraged to create further works. It would
allow the visual artist to maintain a continuing relationship with their work.
- In the Report of Contemporary Visual Arts and Craft Inquiry, Rupert Myer recommended that the Commonwealth Government introduce a
resale royal arrangement.[80]
He observed that artists would obtain a substantial benefit from such a scheme. The case for a right of resale was particularly
strong for Indigenous artists. Myer advised that a working group be established to analyse the options for introducing a resale
royalty arrangement. He maintained that the proceeds of resale royalties should be paid directly to the individual artists, rather
than to a communal fund. Furthermore, he recommended that the Federal Government to conduct a tender to determine an appropriate
body to administer the resale royalty arrangement. There has been much debate in the artistic community about the merits of a right
of resale.[81]
- In the face of these calls by the professional association for visual artists, the Daubists have been opposed to the introduction
of a right of resale in Australia. Schulze argues that visual artists do not deserve special treatment. He points out that the
idea of droit de suite is based upon romantic myths about the artist. Schulze contends that the right of resale will benefit the
elite group of art stars and celebrities who are popular and command high prices for their current works. He argues that such a
right would not benefit the mass of artists who really need help:
The idea of passing on some fee to the artist each time a work of art is sold has something to do with the bad financial situation
of the artist. If the artist is originally poor, and later in life becomes well-established, the logic is that the artist should
participate in the gains made from his or her earlier work... What I do not understand is why artists should receive a special position
in society, especially since this special position is not maintained in discourse and discussion about art. It is only brought up
in this specific context. Who really cares about the masses of artists on this planet apart from the top few percent who are treated
like kings and queens? The masses of artists are basically just ignored. The argument about the right of resale is brought up whenever
it suits the establishment - the gallery system, the museums, and the wealthy artists. I think that it just becomes a specific administrative
tool.[82]
- However, Schulze does not mention the impact that a right of resale would have on Daubism and similar artistic practices. It is arguable
that the droit de suite would act as a financial disincentive to the art of appropriation because it would increase the cost of purchasing
the raw materials to create new art works. So it is understandable why the Daubists would oppose the right of resale.
- The dispute over Daubism is significant in terms of formal law, even though it did not result in a binding decision of a court. It
was an important discursive event. The controversy sponsored debate in the artistic community, the legal system, and the media.
The experience of the Daubists provides a salutary lesson for copyright activists. It shows that a small vanguard of artists will
find it difficult to bring about social change by themselves, however committed and passionate they may be. The Daubists needed
to build alliances and coalitions. They could have sought to rally and organise support in the artistic community. The Daubists
also required a good legal advocate to translate their artistic claims into legal language. It would have helped them fend off the
legal threats of Bannon and Robyn Layton. The Daubists also recognised the importance of good media presentation. They needed access
to mainstream channels of communication to press their case more forcefully.
- The Daubist dispute touches on questions of copyright law and new technologies. Schulze comments that the artistic practices of daubing
and appropriation should be set in the context of the digital age:
In this day and age the storerooms of museums overflow with deteriorating art. Digital processes and advanced printing techniques
generate copies more 'real' and of better quality than the originals. Therefore the idea of trying to preserve the one exact original
state of an art piece reeks of ill-founded sentimentality and impractical retro vision. The Daubists envisage an enlightened future
in which it will be considered normal to recycle works of art over and over again.[83]
- However, the Daubists are in some respects a retro, nostalgic group. They see themselves as archivists, conservationists, and curators
of original works of art. The Daubists do not exploit the digital technologies of reproduction and dissemination. They are not
really interested in the copies that simulate the originals. By contrast, a number of their contemporaries are wired to the possibilities
of electronic art. They seek to use digital technologies to copy, manipulate, and replicate works of art out into the electronic
ether.
- The Daubist dispute also ran parallel to the controversies over the authorship, collaboration, and appropriation of Indigenous art.
However, such matters were complicated by questions of racism, colonialism, and imperialism. In the Daubism debate, Armstrong argued
that Australian landscape paintings were idealised visions of nature based upon inappropriate European models. He said that landscape
paintings were 'white man's dreaming' and 'little pretty pictures', which only represented a small part of the world.[84]
- In a pamphlet, the Daubists proclaim: 'One could say that white Australia itself is a daub on this continent'.[85]
They hint that Australia is a palimpsest, in which Aboriginal and Torres Strait civilisations has been written over by Western colonisers.
However, the Daubists steer clear from the appropriation of Indigenous art and culture. Schulze observes: 'It becomes a bit tricky
because Indigenous people have been exploited ever since Australia was settled two hundred years ago'.[86]
It would seem that the appropriation of Indigenous culture is different in nature and kind from the appropriation of European art.
[1]
Vaver, D. 'Moral Rights Yesterday, Today, And Tomorrow', International Journal Of Information Technology And Law, 1999, Vol.
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[2]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[3]
For a gallery of select paintings, see the website of driller Jet Armstrong: http://www.drillerjetarmstrong.com/daubism/
[4]
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[5]
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McLean, I. and Bennett, G. The Art of Gordon Bennett. Sydney: Craftsman House, 1996; McLean, I. White Aborigines. Cambridge:
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Vol. 4 (1), p. 286.
[9]
Langton, M. Well I Heard It on the Radio and I Saw It on the Television: An Essay for the Australian Film Commission on
the Politics and Aesthetics of Filmmaking by and about Aboriginal People and Things. Sydney: Australian Film Commission, 1993.
[10]
Newton, G. and Moffatt, T. Fever Pitch. Sydney: Piper Press, 1995.
[11]
Harris, S. 'Arts Uproar over Defaced Painting', The Adelaide Advertiser, 27 September 1991, p. 1.
[12]
Magazanik, M. 'Court Grants Injunction over Changing Landscape', The Age, 28 September 1991, p. 3.
[13]
Bate, J. The Genius of Shakespeare. London: Macmillan Publishers Ltd, 1997.
[14]
Staff Reporter. 'Controversial Painting Centre of Legal Wrangle', The Adelaide Advertiser, 28 September 1991, p. 2.
[15]
Schulze, M. 'The Death of Daubism? The Case against the Introduction of Moral Rights', Artlines, 1997, Vol. 2 (4), p. 6.
[16]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[17]
Harris, S. 'Arts Uproar over Defaced Painting', The Adelaide Advertiser, 27 September 1991, p. 1.
[18]
Knabb, K. (ed.) The Situationist International Anthology. Los Angeles: Bureau of Public Secrets, 1981; Wollen, P. and Francis,
P. (ed.) On the Passage of a Few People Through a Rather Brief Moment in Time: The Situationist International 1957-1972. Cambridge,
Mass: The MIT Press, 1989; and Sadler, S. The Situationist City. Cambridge, Massachusetts: The MIT Press, 1998.
[19]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[20]
Sproull, R. 'Jet's Brush with Bannon Fame Draws Artistic Ire', The Australian, 27 September 1991, p. 3.
[21]
Ibid.
[22]
Schulze, M. 'The Death of Daubism? The Case against the Introduction of Moral Rights', Artlines, 1997, Vol. 2 (4), p. 5.
[23]
McCaughey, P. Fred Williams 1927-1982. Sydney: Murdoch Books, 1996.
[24]
McDonald, J. Jeffrey Smart: Paintings of the '70s and '80s. Sydney: Craftsman House, 1995; and Capon, E. Jeffrey Smart
Retrospective. Sydney: Art Gallery of New South Wales, 1999.
[25]
Grishin, S. Garry Shead: The D.H. Lawrence Paintings. Sydney: Craftsman House, 1993; and Grishin, S. Garry Shead: Encounters
with Royalty. Sydney: Craftsman House, 1997.
[26]
Fern, L. William Robinson. Sydney: Craftsman House, 1995.
[27]
Hughes, R. Nothing if not Critical. London: Collins-Harvill, 1990.
[28]
Britain, I. Once an Australian: Journeys with Barry Humphries, Clive James, Germaine Greer and Robert Hughes. Melbourne:
Oxford University Press, 1997, p. 226.
[29]
Slattery, L. 'Robert Hughes' Critical Face Turns a Reddish Hue on Landscape', The Australian, 6 November 1998, p. 1; Slattery,
L. '"Unconscious Cannibal" Says Sorry', The Weekend Australian, 7-8 November 1998, p. 3; and Slattery, L. '"Cannibal" Eats his
Own Words', The Weekend Australian, 7-8 November 1998, p. 28.
[30]
Slattery, L. '"Unconscious Cannibal" Says Sorry', The Weekend Australian, 7-8 November 1998, p. 3
[31]
Donovan, Z. 'New Art Controversy Features the Queen', The Adelaide Advertiser, 20 January 1992, p. 3.
[32]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[33]
Harris, S. 'Arts Uproar over Defaced Painting', The Adelaide Advertiser, 27 September 1991, p. 1.
[34]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[35]
Overseas artists have encountered similar difficulties in gaining access to Australian galleries. The Serrano exhibition was
forced to leave the National Gallery of Victoria after protests from the religious community in 1997. Similarly, the Sensation exhibition
was recently cancelled at the National Gallery of Australia because of political pressure from Richard Alston, the Minister for Communications,
the Information Economy, and the Arts.
[36]
Australian Government. Creative Nation: Commonwealth Cultural Policy. Canberra: Department of Communications and the Arts,
1994.
[37]
Sproull, R. 'Jet's Brush with Bannon Fame Draws Artistic Ire', The Australian, 27 September 1991, p. 3.
[38]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[39]
Sproull, R. 'Jet's Brush with Bannon Fame Draws Artistic Ire', The Australian, 27 September 1991, p. 3.
[40]
Galerie d'Art du Petit Champlain v Theberge (2002) SCC 34
[41]
Id at [22]
[42]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[43]
Davies, T. (ed.) 'Hou Leong' in Artlines, 1995, Vol. 1 (1), p. 8; Leong, H. 'Photographic Essay: An Australian', in Barnes,
J. (ed.) Asian and Pacific Inscriptions: Identities, Ethnicities, Nationalities. Meridian, 1995, Vol. 14 (2), pp. 111-120; and
Romney, J. (ed.) 'Protect the Parodist', The Arts Law Centre Newsletter, 1995, Vol. 9, p. 1.
[44]
Rogers v Koons (1992) 960 F. 2nd 301; United Feature Syndicate Inc. v Koons (1993) 817 F. Supp. 370; and Campbell v Koons (1993) No 91 Civ. 6055 (RO), 1993 WI 97381.
[45]
Buskirk, M. 'Commodification as Censor: Copyrights and Fair Use', October, 1992, Vol. 60, p. 83; Carlin, J. 'Culture Vultures:
Artistic Appropriation and Intellectual Property Law', Columbia - VLA Journal of Law and the Arts, 1988, Vol. 13, p. 103; Harmon,
L. 'Law, Art, and the Killing Jar', Iowa Law Review, 1994, Vol. 79, p. 367; McLean, W. 'All's Not Fair in Art and War: A Look
at the Fair Use Defense after Rogers v Koons', Brooklyn Law Review, 1993, Vol. 59, p. 372; Patry, W. and Perlmutter, S. 'Fair Use
Misconstrued: Profits, Presumptions, and Parody', Cardozo Arts and Entertainment Law Journal, 1993, Vol. 11, p. 667; Sherman, B.
'Appropriating the Postmodern: Copyright and the Challenge of the New', Social And Legal Studies, 1995, Vol. 4, p. 31; and Wang,
E. '(Re)productive Rights: Copyright and the Postmodern Artist', Columbia - VLA Journal Of Law and the Arts, 1990, Vol. 14, p.
261.
[46]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[47]
Campbell v Acuff-Rose Music, Inc. (1994) 127 L Ed 2d 500.
[48]
Simpson, S. Review of Australian Collecting Societies. Canberra: The Minister For Communications and the Arts and the Minister
for Justice, 1996.
[49]
(1985) 5 IPR 426.
[50]
Staff Reporter. 'Controversial Painting Centre of Legal Wrangle', The Adelaide Advertiser, 28 September 1991, p. 2.
[51]
Kenyon, A. 'Defamation, Artistic Criticism and Fair Comment', Sydney Law Review, 1996, Vol. 18, p. 152.
[52]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[53]
Meskenas v Capon (unreported, District Court of New South Wales, 28 September 1993).
[54]
Ryle, G. and Maley, N. 'Art Row Over, but Debate Goes On', The Adelaide Advertiser, 4 October 1991, p. 3.
[55]
Hughes, R. Nothing if not Critical. London: Collins-Harvill, 1990.
[56]
Ryle, G. and Maley, N. 'Art Row Over, But Debate Goes On', The Adelaide Advertiser, 4 October 1991, p. 3.
[57]
Ibid.
[58]
Harris, S. 'Arts Uproar over Defaced Painting', The Adelaide Advertiser, 27 September 1991, p. 1.
[59]
Staff Reporter. 'Controversial Painting Centre of Legal Wrangle', The Adelaide Advertiser, 28 September 1991, p. 2.
[60]
Ryle, G. and Maley, N. 'Art Row Over, but Debate Goes On', The Adelaide Advertiser, 4 October 1991, p. 3.
[61]
Donovan, Z. 'New Art Controversy Features the Queen', The Adelaide Advertiser, 20 January 1992.
[62]
Harris, S. 'Dabbling in Darling Daubs', The Adelaide Advertiser, 11 November 1997.
[63]
Sproull, R. 'Jet's Brush with Bannon Fame Draws Artistic Ire', The Australian, 27 September 1991, p. 3.
[64]
Magaznik, M. 'Court Grants Injunction over Changing Landscape', The Age, 28 September 1991, p. 3.
[65]
Schulze, M. 'The Death of Daubism? The Case against the Introduction of Moral Rights', Artlines, 1997, Vol. 2 (4), pp. 4-7,
21.
[66]
Australian Government. Proposed Moral Rights Legislation for Copyright Creators: Discussion Paper. Canberra: The Attorney-General's
Department, Canberra, 1994.
[67]
S 193 of the Copyright Amendment(Moral Rights) Act 2000 (Cth).
[68]
S 195AI of the Copyright Amendment(Moral Rights) Act 2000 (Cth).
[69]
S 195AS of the Copyright Amendment(Moral Rights) Act 2000 (Cth); and S 195AT of the Copyright Amendment(Moral Rights) Act 2000 (Cth).
[70]
Morrow, B. 'Originality: 'Primary, Initial, First'', Alternative Law Journal, 1995, Vol. 20 (4), p. 162.
[71]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[72]
Schulze, M. 'The Death of Daubism? The Case against the Introduction of Moral Rights', Artlines, 1997, Vol. 2 (4), p. 21.
[73]
Waters, C. 'To Daub or Not To Daub - A Moral Rights Dilemma', Art Monthly Australia, 1998, Vol. 108, p. 25.
[74]
Senate Legal and Constitutional Legislation Committee. Copyright Amendment Bill No.1. Canberra: Parliament House, 1997.
[75]
Schulze, M. 'Interview with the Author', Sydney, 25 March 1999.
[76]
S 195AW of the Copyright Amendment(Moral Rights) Act 2000 (Cth).
[77]
S 195AR (3)(f) and s 195AS (3)(g) of the Copyright Amendment (Moral Rights) Act 2000 (Cth).
[78]
Ricketson, S. 'Moral Rights and the Droit de Suite: International Obligations and Australian Obligations', Entertainment
Law Review, 1990, Vol. 3, p. 78; Oman, R. and Others. 'Copyright Office Hearings on the Droit de Suite', Columbia-VLA Journal of
the Law and the Arts, 1992, Vol. 16, p. 185; Perlmutter, S. 'Resale Royalties for Artists: An Analysis of the Register of Copyrights
Report', Columbia-VLA Journal of the Law and the Arts, 1992, Vol. 16, p. 395; and Hughes, S. 'Droit de Suite: A Critical Analysis
of The Approved Directive', European Intellectual Property Review, 1997, Vol. 19 (12), p. 695.
[79]
This problem is long-standing and pervasive. See Perlmutter, S. 'Resale Royalties for Artists: An Analysis of the Register
of Copyrights Report', Columbia-VLA Journal of the Law and the Arts, 1992, Vol. 16, p. 395.
[80]
Myer, R. Report of Contemporary Visual Arts and Craft Inquiry. Canberra: Department of the Communications, Information Technology
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