Artist heartbroken by copyright battle warns others after Supreme Court landmark ruling

A decision last week by the Supreme Court that upheld earlier decisions by the Court of Appeal and the High Court, cemented copyright as being relationship property in the event of a partnership split.

Alalääkkölä said it was “tragic for New Zealand artists”, who now needed to be on guard because from her view, it was clear that an artist’s copyright was not protected by law, in the event of a split in a partnership.

Her lawyer Clive Elliott, KC, told NZME the decision was an important one, and a landmark decision for copyright holders and artists in particular.

But it was not as clear-cut as people might think.

“The saving grace here is that the court did recognise that this was a unique situation,” Elliott said.

Essentially, while the copyright is to be shared, Alalääkkölä retains sole legal ownership of the paintings. That means control and copyright of them has to be done according to her wishes as the artist, which Elliott said was an important principle.

“Even though we were not successful on the appeal, there were important statements made by the Court of Appeal and the Supreme Court on the primacy of copyright and authors' rights.”

He said it was not like owning shares in a company where there is no personal attachment.

“Both the Court of Appeal and the Supreme Court were very clear that the artist did have a personal and very close attachment to the artistic works.”

The courts’ findings also mean an adjustment is needed to the divvying up of other relationship property to ensure an equal division.

Alalääkkölä, 60, says that leaves her at a financial disadvantage, and almost at the end of the road with her ex-husband, former chief photographer at the Marlborough Express, Paul Palmer.

Photographer meets artist

They met when he was assigned to photograph her at her newly established studio in Havelock, Marlborough. Alalääkkölä says New Zealand was meant to have been a stopover on her way to Australia, but she fell in love with the country, including its outdoors.

The pair married in 1997, and split in 2017, following what Alalääkkölä describes as a marriage having petered out.

At the time there was a stock of unsold paintings that she had created during the relationship, and which gave rise to the dispute over the copyright on her artwork.

“This has just been heartbreak all along because I did not know, and I never knew that copyright could be shared.

“I did not know that even the paintings could be relationship property. That was the first shock,” she said.

Despite advice from others to cut her losses and walk away, to her, it wasn’t that simple.

“People say, ‘Oh, just leave the art, just walk away and let go of the art’, but I couldn’t accept offers that would leave me in debt just to get my art back, because that’s the situation,” Alalääkkölä said.

“If it was furniture or the house even, I don’t care, but if I let go of the art [copyright], then that will continue past the divorce and that wouldn’t be a clean cut.”

Successive courts have described Alalääkkölä‘s work as having been the family’s main source of income, and it’s a point she strives to highlight.

Alalääkkölä is a graduate of the Academy of Fine Arts in Helsinki, who then completed postgraduate studies at New York University with the help of a Fulbright scholarship.

Her work features in the Finland National Gallery, and she says she is still better known in her homeland than in New Zealand, but many people assumed that her former husband must have been working and supporting her financially allowing her to “do some arty-farty stuff”.

Palmer told NZME in a brief statement that he disagreed with how his former wife had characterised their relationship and joint business.

He was however pleased with the outcome, although disappointed it had meant he’d had to defend the High Court decision he won in the two upper courts.

The case first went to the Family Court in 2020, when Palmer sought the transfer of copyright for a list of specific paintings so he could reproduce and sell them.

Alalääkkölä had by then agreed that Palmer could keep the designated paintings but firmly opposed transferring the copyright.

The Family Court agreed with her, but Palmer appealed to the High Court which reversed the decision, finding that the copyright was relationship property and should be divided equally.

Alalääkkölä then went to the Court of Appeal, which ruled that copyright in artworks created while the couple were together was relationship property but should remain under Alalääkkölä‘s sole legal ownership.

Unhappy with the outcome, Alalääkkölä then went higher, but it ended with her gaining no further traction in her argument.

The Supreme Court dismissed her appeal that copyright was not relationship property but separate property.

The second prong of the appeal involved the classification for valuation purposes of the artworks and the copyrights in them.

When statutes collide

Elliott, whose expertise is in copyright law, said the outcome could be seen as the result of a collision between two statutes.

“I think part of the problem is that the courts have taken a very pro-property relations look at this because the Property Relations Act does say that there has to be an equal division of assets on separation and divorce.

“The act is very strong, but the Copyright Act is also very strong. It says that when you’re an author, you own the copyright.”

Elliott says there’s a conflict between these two statutes, and the courts, other than the Family Court, have said the property relations regime trumps the copyright regime.

“The Property Relations Act is a blunt instrument, in my view, and I’m saying that as a copyright lawyer.

“A family lawyer may disagree with me and say it’s very clear, but I think it’s blunt in the sense that I don’t think that copyright should be treated as property in the relationship property sense.

“I accept that the Supreme Court disagreed with that and said, I’m wrong and so we have to live with that.”

Alalääkkölä‘s loss on appeal meant she was also left with another expensive legal costs order, although the court granted some concession in its order that the total $30,000 in costs were to be split between the pair.

The task of deciding the value and distribution or sale of the artworks and copyrights in them has been handed to the Family Court.

Alalääkkölä is now making plans to leave the country.

“Even though I’m leaving, I still feel strongly about the injustice that’s happened here and will happen to other artists.

“What has come out of this is that really the law should be changed, but it’s too late for me as a Supreme Court decision has been made.”

She says as time passes, she is less distraught than she was at the start. She is also of the mind that perhaps her best work is yet to come, once free of what she feels has been a compulsion to paint for commercial gain, rather than works that are true to her soul.

“I love painting, and I’d love to do something ‘real’. I feel it may happen. I’m still better known in Finland than I am here.”

Palmer said he’d like to thank the panel of five Supreme Court judges for their unanimous decision, in which “logic and commonsense had prevailed”.

The pair now face what Alalääkkölä hopes is the final chapter in the Family Court.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.