Neil Sands
A long-running dispute about whether copyright in artworks is caught under the Property (Relationships) Act 1976 has been settled, with the Supreme Court upholding a Court of Appeal decision that copyright should be counted as relationship property in the event of a break-up.
Finnish artist Sirpa Alalääkkölä and her husband Paul Palmer split in 2017 and copyright on her artwork, which had been the couple’s main source of income, was disputed in proceedings filed that year.
The Family Court found that copyright belonged solely to Alalääkkölä. Palmer appealed to the High Court which reversed this decision, finding that the copyright was relationship property and should be divided equally.
Alalääkkölä then took the case 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, with Palmer receiving a compensatory financial adjustment from other relationship property to ensure an equal division.
Alalääkkölä then appealed to the Supreme Court which agreed with the Court of Appeal and sent the matter back to the Family Court.
“We answer the questions of law as follows: copyrights are property for purposes of the Property (Relationships) Act 1976 and they may be relationship property,” said the judgment from Supreme Court judges Sir Mark O’Regan, Dame Ellen France, Sir Joe Williams, Sir Stephen Kós and Forrest Miller.
“The appeal is dismissed. We direct that the proceeding be remitted to the Family Court to decide the value and distribution or sale of the artworks and copyrights in them.”
The arguments
Both parties agreed that the paintings themselves were relationship property. But Alalääkkölä contended that the copyright in these artworks was not relationship property for the purposes of the PRA and, if this were found to be wrong, then the copyright was separate rather than joint property.
It was not relationship property because it was the result of Alalääkköl’s expression of personality and skills, her lawyers argued.
The court said the Copyright Act stated clearly that copyright was property. It existed apart from the author’s moral rights and had a value realisable in money. Therefore, the court said, copyright fits within the PRA’s definition of property as “personal property”.
“There is no reason to exclude intangible property from the definition.”
The court said defining copyright as the result of personal expression and skills was “an attempt to combine, for PRA purposes, economic and moral rights that Parliament chose to separate in the Copyright Act”.
To define copyright in this way, one would need to find in a clear justification in the PRA but “it is not obvious what this would be”.
“To treat copyright as personal property under the PRA is not to detract from the copyright. Rather, it is to recognise the value of the bundle of economic rights that copyright embodies. The involuntary nature of a court-ordered transfer does it, in itself, detract from the copyright,” the court said.
In a LinkedIn post after the decision was released, Alalääkkölä’s lawyer, Clive Elliott KC, said importantly, from a copyright perspective, the Supreme Court had confirmed that the artist had the right to control the copyright in her artworks “and to a large measure the way the valuation is conducted”.
He acknowledged that intellectual property and relationship property lawyers looked at the issue “through a very different lens”.
It was common ground that the valuation and division of property had to return to the Family Court for determination but the parties now had clear guidelines from the Supreme Court about how that was to be done.
Read the case note here
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