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Jani McCutcheon

2017 marked the 50th anniversary of Australia’s 1967 Federal Constitutional Referendum, Australia's most unanimous. This referendum removed two references in the Australian Constitution that discriminated against Aboriginal peoples. It is widely considered to be a landmark of Aboriginal political history and a turning point for Australian Aboriginal affairs. When the Sky Fell was a 2017 exhibition of Aboriginal artists’ works, curated to mark the 50th anniversary of the Referendum and to artistically explore a range of responses and stories about the consequences of the Referendum for Indigenous peoples in Australia. Featured in the exhibition, The Nullians is a sculpture installation created by West Australian Aboriginal artist, Sharyn Egan, in which Egan collates and positions numerous polished wooden objects, mostly vases, lamps and bowls. This chapter explains the background to the referendum and reflects on how The Nullians illuminates and provokes a matrix of perspectives, responses and ideas relating to Aboriginal peoples in Australia and the legacy of the referendum.

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Jani McCutcheon

This chapter explores the picturisation right under copyright law, the right to transform words into pictures. This right navigates the intersection between the literary and the visual, and moderates how characters, scenes and stories can be, to borrow from Shakespeare, ‘bodied forth’ in graphic form. The right correspondingly calibrates artistic freedom to interpret text and demands a careful consideration of the relationship between art and language and the differing implications of literary and visual appropriation. This has immediate consequences for numerous artistic derivative works, including the burgeoning genre of graphic novels, comics and cartoons, and fan art. This chapter investigates the origins, rationale and scope of the underexplored picturisation right and interrogates how copyright law processes this relationship between text and artistic image. In considering the differing implications of literary and visual appropriation, the paper also demonstrates how the picturisation right directly confronts the idea-expression dichotomy in copyright doctrine, and helps us understand the copyright work as an immaterial construct capable of traversing different media.

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Jani McCutcheon

As a fusion of art and biological science, bio art has an uneasy relationship with copyright. While the confluence of biology, science and art is fertile creative territory, it challenges a number of copyright subsistence doctrines. This can exclude bio art creations from the copyright domain, denying bio artists the copyright protection enjoyed by their conventional artistic peers. As bio art makes stronger claims to a legitimate artistic practice, it precipitates a reflection on whether it should stand on an equal footing with other artistic works protected under copyright law. This chapter describes the broad spectrum of creations that might arguably fall within the contested definitions of bio art. It then explains the potential misalignment between bio art and copyright. Finally, it explores the practical and normative ramifications of this dissonance.

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Jani McCutcheon

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

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Jani McCutcheon and Jordan Leahy

Copyright works are frequently created in breach of one or more laws. These works vary in degrees of wrongfulness and the laws and interests that are impacted by them. The works may contain illegal content, such as child pornography. Laws may also be contravened in the process of creating copyright material, such as a graffiti artist committing trespass. Courts’ remedial responses to these ‘illegal works’ generate important social and policy issues. Granting owners of copyright in illegal works the full panoply of remedies might incentivize or normalise illegal behaviour and effectively reward wrongdoing. And yet, moderating remedies may appoint judges as moral guardians. Focusing on Anglo-Australian law, this article examines whether the unlawfulness infecting illegal works can and should be considered by courts in exercising their remedial discretion in two main contexts. First, it investigates when and why courts have refused to enforce copyright on public policy grounds, and attempts to distil relevant principles from diverse decisions. Second, the article considers the relevance of illegality when courts exercise their equitable jurisdiction, focusing on the remedy of a constructive trust which grants the benefit of copyright to the victim of the author's wrongdoing. The article argues that, in narrow circumstances, courts should have the flexibility to offset the illegality on public policy grounds and by imposing a remedial constructive trust.

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Edited by Jani McCutcheon and Fiona McGaughey

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Edited by Jani McCutcheon and Fiona McGaughey

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Jani McCutcheon and Fiona McGaughey

In a book which investigates the intersections between art and law, we found this quote by Chekhov intriguing. It provoked numerous responses. Surely artists – and art – can indeed, answer questions? Even while art asks questions, it usually provides some clues to how we might respond. In curating this book, we spent much time contemplating what art does, and what law does, and more importantly what they do and can do for each other. And we were struck by the sheer number and variety of questions that circulate in the chapters of this book. Questions by, about, and of both art and law, and the society and culture they help to form, and which shape them. Both art and law pose, and we would suggest, answer questions. We are particularly interested in the reciprocal questioning and answering that can occur between art and law, and we sought in this book to harness and reveal that dynamic. This book responds to an increasing interest in the connections between visual art and law, and aims to foster a multi-faceted, international and interdisciplinary dialogue between these two fascinating territories. Traditional approaches to the interface between law and art have tended to focus on substantive areas of law that most directly deal with art, such as copyright and cultural heritage law. Or, they take a generalist area of law and target its specific application to art, such as art and freedom of expression. Sometimes they examine the interface between the law and particular genres of art, such as graffiti, or art in particular legal contexts, such as famous art trials. There is other scholarship engaging generally with the very broad topic of ‘Art and the Law’, however this tends to be jurisdiction-specific, and functions more as descriptions of the numerous laws with potential application to art, and as guides for practitioners or artists.

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Edited by Jani McCutcheon and Fiona McGaughey

Featuring international contributions from leading and emerging scholars, this innovative Research Handbook presents a panoramic view of how law sees visual art, and how visual art sees law. It resists the conventional approach to art and law as inherently dissonant – one a discipline preoccupied with rationality, certainty and objectivity; the other a creative enterprise ensconced in the imaginary and inviting multiple, unique and subjective interpretations. Blending these two distinct disciplines, this unique Research Handbook bridges the gap between art and law.
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Ema Denby, Paul Green-Armytage and Jani McCutcheon

This chapter explores the interrelationship between colour, art and the law. It considers problems for the law in regulating colour in art. It focuses on the potential to protect colours under Australian intellectual property law, but also explains how artists’ freedom to use certain colours may be legally curtailed under exclusive use contracts, trade secrets law, industry codes, and health law banning the use of harmful compounds. From a historical perspective, it argues that ‘soft’ law restricted the use of precious pigments available to artists. To illustrate the issues, it utilises two hypothetical case scenarios involving Yves Klein’s blue monochromes and recounts how ‘forbidden colours’ are at issue in contemporary controversies surrounding Klein’s patented colour International Klein Blue and Vantablack, the former being the most vivid blue ever produced and the latter, the blackest black. From the scientific literature on colour perception, the chapter distinguishes between colours as substances, appearances and perception. It discusses the difficulty in regulating colour when colour itself is subjective, and experiences not definitively predictable. In dealing with these challenges, the chapter draws implications for exercising creative freedom.