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,  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. The commissioned copyright follows the artist.  They are all wrong for in the NZ  Commissioning Rule the copyright follows the commission NOT the Artist who is only 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 copyrighted work?  Who is the First Owner and who is the Author. The copyrighted work 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 Buyer of an artwork has to have a valid Title to sell on legally.

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 copyrighted work or a photograph but the expression of copyright or the image and the negative follows the Artist.  This breaking of the two parts of the copyright leads to no end of confusion.

A lot of unpleasantness can follow if a commissioned  NZ Artist, not knowing the NZ Commissioning Rule, decides he is The First Owner and sells on to an innocent third party as when the Commissioner finds out the artwork has to go back.

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 comes out on top. For Employers of artists in NZ, say like an NZ Walt Disney, it is the same.

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

But and it is a BIG BUT - if the artist is commissioned in NZ  the commissioned artist gets nothing, absolutely nothing. Not the copyright work, that belongs to the Commissioner right from the moment the commissioned artist sets to work. The title belongs to the Commissioner and even if the commissioner does not pay up, the commissioned artist has no right to sell it on to get his money back. The artist s not allowed to make copies to sell either or to destroy the work as it does not belong to the artist and may damage the commissioner's property.

If the artist is foolish enough to do this and sell the copyright work by pretending that it is an original work of the artist and a third party 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? Usually, The Sale of Goods Act 1908 protects Third Party buyers. It does but only if it is the artist's original work and the artist own the copyright. Artworks are property and like cars and houses have titles. Artists ought to give Certificates of Title but in NZ they don't bother.

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 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 photograph 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,  because the Copyright Act gives the Commissioner a right of property too. There is no time limit on stolen copyright 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.

An infringement of many years ago is still as fresh as a daisy today. The copyright object goes back to the commissioner and to make matters worse the Innocent Buyer can face a huge fine and imprisonment if the buyer had infringed copyright if they find out and do nothing. 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 illegal copies of DVDs even if when they bought them they thought they were genuine.

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.

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