Some of Australia’s best-known rock photographers are calling copyright infringement by the online auction of media giant Fairfax’s Sydney Morning Herald image archive.
On Friday ABC news reported hundreds of original photographs that include Michael Hutchence and Kylie Minogue (in that noughts and crosses dress!), Cold Chisel, Midnight Oil and many more iconic Australian and international rock musicians - are being sold online through Lawsons Auction house.
Long story short – in 2013 Fairfax outsourced digitising their image archive to a US company that went broke and 2 million prints from the Sydney Morning Herald fell into the hands of the LA art dealer who has subsequently put them on sale in Australia.
Kylie Minogue and Michael Hutchence, image Jack Atley
Finding multiple copies of their work in the auction, photographers took to Facebook with a string of WTF comments. Legends Tony Mott and Ian Greene claim in the thread they not only retain the negatives to the images, but still own copyright.
Adding insult to injury – the images appear to have been republished without photographer permission, and in many cases no author attribution is credited in the auction catalogue.
Photography – images taken after 1955 are protected for the life of the author plus 50 years after their death
Like art, photography is automatically protected by copyright in Australia. Whilst the length of protection has changed overtime, images taken after 1955 are currently protected by copyright for the life of the creator (author) plus 50 years after their death.
Film, music, photography, art, literature and architecture are automatically protected by copyright, but not furniture and lighting - why?
Like many areas of IP (Intellectual Property) there’s no one size fits all answer. Arts Law Australia cautions that photographers might be “infringing copyright if photographing the whole or a substantial part of a literary, musical, dramatic or artistic work, if the work is still protected by copyright.“
This references other creative disciplines also protected by Australian copyright like literature, music, art and film that also includes architecture. But not three-dimensional industrially designed products.
"A successful product creates a network.
A successful collection creates a sub-economy"
AMS, Authentic Design Alliance
Having previously spent a decade as a touring and recording artist in the band Van She, Tomek is also an award-winning furniture designer.
Archer asked the commissioners a simple question – if as an architect or a musician his IP is automatically protected by copyright in Australia, why are his furniture designs treated differently?
“The design industry is 20 years behind the music industry when it comes to dealing with digital rights, and much further behind when it comes to copyright protection!”
Tomek looks to the music industry, and how by adjusting licensing models once streaming and digital purchases became the norm, they had to adapt when new distribution streams appeared. He also questioned why the design industry is yet to address the problems with online product sourcing, pointing to search engines like Google compounding the problem.
In his presentations with us at the PCIP hearings, Tomek asked the commissioners to refer to their Productivity Commission draft report. Each page of the PCIP report clearly labeled as protected by Australian Copyright law.
It was a watershed moment for those in the room. But one that ultimately drew no recommendations from the final report for any changes to IP protection in our sector.
In short, you can’t reproduce the report without written permission from the Federal Government, but you can replicate furniture that isn’t design registered.
With no automatic copyright protection, that just leaves design registration...
Currently industrially produced objects like furniture and lighting can only be protected in Australia via applying for design registration with IP Australia.
The process is costly, as many designers create a collection of products, vs just one product. Bulk registrations incur multiple filing fees, and when granted, protection extends for a mere 5 years renewable for an additional 5 years (10 years total).
Given the extensive financial investment essential to launching any collection, 10 years is nowhere near long enough to recoup a rightful income via product sales!
What happens to furniture designs after 10 years?
Campfire by Tomek Archer (2002), available ANIBOU image courtesy Tomek Archer
Tomek is one of many Australian designers to discover copies of his furniture designs. The best-selling Campfire table has received many accolades, named among the Top 20 Australian Design Moments listed alongside the Holden Monaro and work by Marc Newson by AFR Australian Financial Review.
He had design registered the Campfire table whilst still studying, and given his music industry background, unlike many early career creatives, Tomek was acutely aware how critical protecting IP is to future income streams should a product become commercially successful.
In most industries that would be considered theft.
But not in the design industry……
Almost immediately, once the Campfire 10-year registration expired, a known replica retailer announced on social media ‘what do you think about our cool new table?’
Yep, you guessed it – no registration, no protection, so legally the design was up for grabs for anyone to produce, sell and profit from!
What followed was the first major online take down in Australia of a local design via social media. An ADA-led rally sparked a lengthy comment stream of informed objections by key designers and industry leaders.
Within 24 hours the brand conceded they didn’t know the design was an original, and removed it from sale. A classic case of buyers heading to China and sourcing products without any due dilligence or knowledge of the provenence of the design.
Creatives investing in lawyers not new products
Unfortunately that instance remains a ‘one-off’, and the rest of the industry are left to fight for their rights through legal channels. An unaffordable reality, so a double loss.
CAMPFIRE by Tomek Archer featured on Belle Magazine SMART SPACES, Bauer Media
Why do creatives and the brands that invest in representing them have to resort to expensive legal action?
And why are no laws in place to protect the future growth of the furniture and lighting sector?
Meanwhile – the UK introduced automatic copyright for the life of the creator plus 70 years after their death (life plus 70) - retrospectively protecting iconic designs targeted by replica resellers
In 2016 the UK introduced radically improved IP protection for the furniture sector to align with Europe. Copyright was extended from 25 years of a product first hitting the market – to life plus 70 - now protecting works for the life of the creator plus an additional 70 years.
This meant that the many iconic designs feasted on by the replica and counterfeit design industry are now protected by UK copyright. The new laws go as far as levelling penalties of up to £50,000 and 10 years jail!
So back to the rock photographers....
It will be interesting to see how the scenario plays out. It appears to be multi-layered and complex, despite photography being one of the easiest creative disciplines to defend when it comes to copyright.
Ironically, with furniture and lighting, photographic copyright is often the simplest, least expensive way for designers (and their distributors) to remove copies of original designs from unauthorised online sales portals.
GLISSANDO Credenza by Jon Goulder (available Spence & Lyda), image Bo Wong
Photographic copyright in the furnishing sector
Jon Goulder is one of many local designers to discover knock-offs of his work on global marketplaces like Amazon. As a fourth generation designer-maker with work held in prestigious collections including National Gallery Australia, naturally he was outraged.
At the time, we contacted Jon flagging that either he or his photographer owned copyright of the images being used to sell the fakes, and they successfully used the platform's dispute resolution forum to achieve immediate removal of their photography from the site.
Whilst removing images of original furniture designs minimises the ability for counterfeiters to knock-off original designs, it’s not the ultimate solution.
**Footnote – it's essential to continue to check periodically the images are not reposted.
Image: Authentic Design Alliance Instagram
Is design registration the answer?
Ultimately – it’s time Australian lawmakers up their game and protect our thriving furnishing sector. A sector that is being savaged by the replica industry and counterfeiters thanks to lax IP laws.
So the struggle is not just real, it’s expensive. And takes design businesses away from their core business of creating, making and distributing quality, original products.
Image: Miss Glass Home Facebook
ALDI vs Miss Glass Home
Like Kate, Siobhan Glass from Miss Glass Home had her first product knocked-off. Both designers had no concept their first product would become so popular.
So popular in fact that after discount supermarket chain Aldi borrowed a Miss Glass Home Clothes Airer for a catalogue shoot as a prop, the German-owned juggernaut responded to social media calls from customers and introduced a direct copy in August!
It's worth drilling down comments stream for the ADA post for a clear picture of industry reaction.
At the time neither designer knew about design registration. Similarly - neither design could be registered thanks to the IP Australia requirement that prohibits products that have exhibited or published, inclusive of blogs and social media from being registered. Something also unique to Australia - where other territories allow a 'grace period' of 6 months or typically 12 -24 months - that allows products to be refined prior to requiring registration.
A win for the chain stores, a loss for the creators.
Support our change campaigns - Join the ADA!
With support from our affiliated partner Australian Copyright Council, the ADA is poised to launch a national campaign for increased IP protection for the furnishing industry. More on that very soon.
In the meantime - if you care about supporting change - become an ADA Member?
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READ MORE about the AFR article by Stephen Todd.