Sunday, October 29, 2017

The Amazing NZ Copyright Commissioning Rule by Janette Miller

Above is the amazing and unique New Zealand  Copyright Commissioning Rule. 

New Zealand is the only country in the world that has this very special Commissioning Rule.

As you can see in the table if you commission an object, a doll, a painting, a design for a Thing-a-me-jig, and especially a photograph it is a good idea to have a very good understanding of this extremely powerful  NZ Commissioning Rule for unless the person you asked to create your idea, known as The Author in this article, asks for a transfer of copyright in writing before starting to work on it you, as the commissioner, own everything, the copyright, first ownership, everything, 

The author/artist/ photographer/etc owns nothing. From the very beginning that the work starts the commissioned artist, who is legally known as the author, owns nothing. If you don't pay because the work is not what you commissioned, the /author/artist/photographer cannot sell it to someone else to get his money back, or copy it and sell copies or destroy it for that would be harming the commissioner's interests. The photographer who has been commissioned is stuck with it.

Sounds wonderful! The problem is that hardly anyone in New Zealand knows about the NZ Commissioning  Rule. Try asking artists, art agents, and even art directors of well-known art galleries and the answer trips of their tongues like treacle off a spoon.Thecommissioed copyright follows the artist.  They are all wrong for in the NZ  Commissioning Rule the copyright follows the commission NOT the Artist whois only the author or the person asked to do the job on behalf of the commissioner.  NZ Copyright Act 1994  Sec 21,3, (b) & Sec 4 (a)(b).

So who owns the copyright work?  Who is the First Owner. and who is the Author. The latter is the special name given in The Copyright Act 1994 under Sec 2, Definitions and Sec 14 Property for the actual physical article. Is it the Commissioner? Is it the Author? Can the Author sell it and give the First Buyer Title? This is critical for the First Buyer of an art work has to have a valid Title to sell on.

The confusion arises because in the rest of the world the NZ Commissioning Rule does not exist. In the rest of the world, The Commissioner gets the copyright work BUT the expression of copyright or the image follows the Artist.  This breaking of the two parts of the copyright leads to no end of confusion and many think still happens in NZ and in certain circumstances it can.

A lot of unpleasantness can follow if the Commissioned  NZ Artist/Author, not knowing the NZ Commissioning Rule, decides himself that the Artist/Author is The First Owner, and sells on as The Artist could if this was the Artist's original work and the Artist really was The First Owner.

The NZ Commissioning Rule is easy to understand if you consult the above crib sheet above. The whole thing is as clear as crystal. There can be exceptions as there are to all rules but the basics are easy to understand. In a Commission in NZ the Commissioner come out on top. For Employers of artist in NZ, say like a NZ Walt Disnery, it is the same Commissioning Rule

In New Zealand, if the copyright work is The Artist's own idea and creation, The Artist has hit the jackpot. The Artist gets the lot, copyright work, copyright of image, full control, everything till 50 years after his death.

But and it is a BIG BUT - if the Artist is commissioned in New Zealand the Commissioned Author/Artist gets nothing, absolutely nothing. Not the copyright work, that belongs to the Commissioner right from the moment the Commissioned Author/artist  sets to work. The Title belongs to the Commissioner and even if the Commissioner does not pay up, the Author/artist  has no right to sell it on to get his money back. The Author/artist s not allowed to make copies to sell either  on or to destroy the work as it does not belong to Author/artist.

If the Author/artist is foolish enough to do this and sell the copyright work off and pretend that The Author/artist is First Owner and the First Buyer buys in Good Faith and does not do due diligence the copyright work has to go back. It still belongs to the Commissioner even though years and years may pass.  Why?

Because the Copyright Acts all over the world are so powerful. If they were not people would be ripping off ideas left right and centre and nobody would ever profit from creative ideas.

As it is people do rip off other peoples' ideas every day and see nothing wrong with it. Well, there is. It is theft and once discovered the copyright work be it a DVD, CD or a photgraph has to go back.

You cannot buy an illegal copy of an article, say a stolen genuine Rolex watch even it is a genuine copy with papers to go with it, if it were stolen and after five years claim under a statue of limitation that you bought in Good Faith, the owner did not claim it, the time limit has run out and it is now yours to sell on as a genuine Rolex Watch because the Copyright Act gives the Commissioner a right of property too. There is no time limit on stolen articles. as a lady in the USA found out. Her coffee table from Roman Times bought in Good Faith 45 years ago had to go back to Rome.

The powerful Copyright Act 1994 has an answer for this defence and that is there is no time limit for Copyright infringement. An infringement of many years ago is still as fresh as a daisy today. The Rolex watch goes back to the original owner and to make matters worse the Innocent Buyer can face a huge fine and imprisonment if the Buyer had infringed copyright even without knowing. In the USA where similar copyright laws, but not The Commissioning Rule are in force,  people go to prison every day for using copyright articles, for example re-selling illegally bought DVDs.

This is just a short introduction to this fascinating law. If you are likely to make a commission or be commissioned it would be a good idea to hone up your skills in this area and prevent disaster for both parties.

Here are a couple of articles by Clendons Law Firm that give a quick overview.

If I have got this wrong please let me know!

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