When Divorce Breaks Us Apart…and Takes Away My (Intellectual) Property

broken heart hanging on wire
Photo by Kelly Sikkema (Unsplash)

Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

 

A recent case tried at the High Court of New Zealand, Palmer v Alalaakkola, raised an intriguing question: is copyright in artwork “relationship property” if it was created during a relationship?

The defendant, Sirpa Alalääkkölä , is an artist who had created original paintings during her 20-year marriage with her ex-husband, Paul Palmer. Following their separation, Palmer entered their former home and took away several paintings by Alalääkkölä for “leverage.” The two parties agreed that Palmer shall keep the artworks he identified, but they could not settle on the issue of copyright ownership. Palmer wanted to claim copyrights in those paintings so that he could profit from selling reproduced copies. He argued that “copyright in the paintings created during the relationship is relationship property and should be divided equally between the parties.

The Family Court initially ruled in favor of Alalääkkölä. The paintings were created during a relationship, but Alalääkkölä acquired her artistic skills long before the marriage. Although the physical paintings are relationship properties, their copyrights belong to Alalääkkölä alone as they were created solely by her. This decision served to avoid the unwanted entanglements between the parties and their conflicting commercial interests in the copyrights.

The appellate court overturned this decision. The judge claimed that it is “not a stretch to classify copyright as relationship property,” considering the breadth of what’s been considered property under New Zealand’s Property (Relationships) Act, covering a wide range of rights including fishing rights and rights to compensation under the Accident Compensation Act. Although jointly-owned copyright may have undesired consequences, Palmer should not be deprived of his copyrights in the paintings. As relationship property, Palmer is entitled to keep “half the paintings by value created during the relationship,” and it is up to the Family Court’s discretion to decide on the division of copyright in the artworks.

Public responses to the decision are ambivalent. Alalääkkölä has won much sympathy on social media; thousands of people across the world shared her plea to reclaim copyrights within hours. Alalääkkölä expressed in an interview that the High Court decision is unfair because it disregarded the emotional connection that artists have with their creations, while their ex-partners may just look at the works as opportunities for financial gain. Lawyers in New Zealand generally view the decision as legally sound. “On the one hand, it’s very easy to see why the Family Court judge was reluctant to define Copyright as the same as other property in the normal sense. On the other, Justice Isac [of the High Court] is quite correct within the law,” said Josie McNaught, an arts and media lawyer based in Auckland.

This case sets a significant precedent in New Zealand by establishing copyright, for the first time, as a relationship property. Similar issues have been explored in the United States, and they are likely to be more and more common as copyrights and intellectual properties play a more prominent role in the economy. Artists, at least, are becoming concerned about protecting their copyrights in case of separation from a partner. “Many law firm’s websites include enticing claims that they can solve this problem,” said IP consultant Caroline Stone.

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