Art Case Update - November 2025
Image: Lady with a Fan by Gerard ter Borch. Source: Open Art Data (left); NGV International. Source: National Gallery of Victoria (right).
Guest Work Agency is your go-to source for art-related legal cases and law reform in Australia, as well as select cases internationally.
In this story, Alana Kushnir and our Paralegal Lily Kruglova report on recent developments including a world first rejection of the AI training copyright exemption by the Australian government, the defamation lawsuit brought by APY Art Centre Collective against Nationwide News, the restitution of Nazi-looted artwork by the National Gallery of Victoria, a UK gallery being charged with breaching Russia sanctions and much more.
Australia
Australian Government Rejects AI Training Copyright Exemption
The Federal Government of Australia has rejected calls from both the Productivity Commission and parts of the tech sector to introduce a copyright infringement exception for companies seeking to train their AI models on Australian copyright-protected works.
On 26 October 2025 the Attorney General announced that the Government is not seeking a Text and Data Mining Exception, noting that “Australian creatives are not only world class, but they are also the lifeblood of Australian culture, and we must ensure the right legal protections are in place.”
The Attorney General also noted that efforts are ongoing to ensure Australia is equipped to address emerging copyright issues related to AI, particularly around protecting and support of Australian creators while enabling innovative uses of copyrighted material.
To this end, the Government has convened the Copyright and AI Reference Group (CAIRG) to focus on three key priorities: (1) promoting fair and legal ways to use copyrighted material in AI, (2) clarifying how copyright law applies to AI-generated content, and (3) exploring the introduction of a small claims forum to make enforcing existing rights more accessible.
Bill Introducing an Orphan Works Scheme into the Copyright Act Has Been Tabled in Parliament
On 5 November 2025, the Copyright Amendment Bill 2025 (the Bill) was introduced into the House of Representatives. It includes amendments to the Copyright Act 1968 (Cth) which introduce an Australian orphan works scheme, which copyright-protected materials whose owners cannot be identified or located to grant permission for lawful use. The proposed reforms also include clarifying the scope of section 28 regarding the performance and communication of copyright material in educational settings to address any ambiguity in the section and make clear that it applies in online or hybrid classroom settings, and making other minor technical adjustments.
Under current copyright law, permission from the copyright owner is generally required before a third party can exploit the exclusive rights of the owner of copyright-protected material. This requirement can pose a practicable problem when the owner is unknown or uncontactable. The Bill establishes a framework to allow the use of orphan works by limiting liability for users who meet the following conditions:
a reasonably diligent search has been undertaken for the copyright owner within a reasonable time before use of the material and a record of the search is maintained for a reasonable period;
the copyright owner cannot be identified or located to obtain permission, and
notice is given in a clear and prominent manner that the work is being used for the purposes of the orphan works scheme.
While these requirements are designed to minimise situations where a copyright owner is later identified and located, the Bill also includes a protection for owners in such cases. If a copyright owner emerges after their work has been used without their permission, they can claim reasonable compensation for prior use under the scheme.
Read more here.
National Gallery of Victoria Returns Nazi-looted Artwork to Jewish family
National Gallery of Victoria (NGV) returned a 17th-century painting, Lady with a Fan by Gerard ter Borch, to the descendants of a Jewish family who lost it during the Nazi era.
The restitution follows a provenance investigation that confirmed the painting was part of a forced sale in 1939 by the Bromberg family in Germany. NGV acquired the work in 1945 and it remained in the gallery’s collection for nearly eight decades.
NGV originally purchased Lady with a Fan in 1945 for £4,000. In the early 2000s, the Emden family contacted the museum, asserting that the painting had once belonged to their grandfather, Max Emden. Their claim was partly based on family recollections and a listing on NGV’s provenance website that referenced “Martin Bromberg,” a relative of the Emdens.
However, in 2006 the museum rejected the Emden family’s claim, citing insufficient evidence to prove the painting had been stolen. At the time, no photographs or documentation existed to support the claim.
In 2022, the Emdens engaged Olaf Ossmann, a Swiss lawyer known for his involvement in a 2014 NGV restitution case, and their claim ultimately resulted in NGV returning the painting to the family sometime this year.
Interestingly, the NGV’s provenance record had incorrectly identified a former owner as “Dr Grunden of Hamburg,” a mistake later acknowledged and corrected on 28 September 2023, when the listing was updated to include Dr Max Emden. The provenance also references Ali Loebl, a figure known from post-war Allied investigations into trafficking of looted art.
The museum has not disclosed what new evidence was presented by the families or why this case was handled privately, in contrast to the highly publicised restitution of a portrait, Head of a Man (formerly attributed to Vincent Van Gogh), in 2014.
Federal Court Rules Covert Footage Copyright Held on Trust for Property Owner
On 13 August 2025, the Full Federal Court handed down its decision in The Game Meats Company of Australia Pty Ltd v Farm Transparency Limited. The case involved covert footage captured by employees of Farm Transparency International (FTI) at one of Game Meats’ abattoirs, which was obtained through acts of trespass on seven separate occasions.
The Court ruled that the copyright in the images, including an edited video, was held on trust by FTI for Game Meats. It ordered FTI to assign the copyright in writing to Game Meats and permanently delete all copies of the footage in their possession.
This is the first time the Federal Court has made such orders in relation to a finding of trespass.
Under the Copyright Act 1968 (Cth), copyright in a photograph generally belongs to the author, while copyright in a film is generally owned by the film’s maker, which in practice usually means the producer. However, the Court found that FTI’s actions, in particular trespassing to gain an unlawful advantage and intending to harm Game Meats through adverse publicity, justified imposing a constructive trust over the copyright in the images and footage. In other words, although FTI as employer of the employees is deemed to be the owner of the footage, the law treats the copyright in the footage as belonging to Game Meats because it was obtained through wrongdoing.
In this way, copyright gave the property owner the rights to control the use of the material, including preventing further copying, public display, or communication of the film. This finding also provides an alternative type of remedy for individuals or companies affected by illegal surveillance, supplementing other remedies available under the Privacy Act 1988 (Cth).
Australia Proposes New Rules for Digital Asset and Tokenised Custody Platforms
The Australian Government has introduced the Draft Treasury Laws Amendment (Regulating Digital Asset and Tokenised Custody Platforms) Bill 2025 which seeks to bring NFT custodians and related platforms under Australia’s financial services licensing regime.
Under the proposal, NFT platforms that buy, sell, exchange, or hold NFTs would fall within two new regulated categories: Digital Asset Platforms and Tokenised Custody Platforms. Operators of such platforms would need to obtain an Australian Financial Services Licence and comply with obligations covering custody standards, user conduct, and disclosure requirements.
Importantly, the Draft Bill’s definitions are broad enough to capture NFTs and other tokenised digital objects, even if they aren’t traditional cryptocurrencies. While targeted exemptions aim to prevent regulatory overlap, many NFT-related services could still be treated as providing “financial services,” significantly tightening oversight of the NFT ecosystem in Australia.
Consultation on the Draft Bill closed on 24 October 2025, giving industry stakeholders an opportunity to provide feedback.
Read more here.
The APY Art Centre Collective has initiated a $4.4 legal action against Nationwide News
The APY Art Centre Collective (APYACC) has launched legal action in the Supreme Court of South Australia, seeking $4.4 million in damages against Nationwide News, publisher of The Australian, over alleged lost revenue, reputational harm and future economic loss. The claim is based on 33 articles that APYACC says falsely implied that white gallery staff had improperly interfered in the work of Aboriginal artists. APYACC claims that the coverage prompted multiple inquiries and led to the organisation losing hundreds of thousands of dollars in funding and support. While corporations generally cannot sue for defamation in Australia, APYACC is able to litigate because it is a non-profit organisation.
In response to the controversy, a 2023 review by the National Gallery of Australia (NGA) examined 28 works associated with the allegations. The review concluded that the artworks met accepted provenance standards, and that the artists involved denied any interference in their creative process. The NGA also noted that within Western art traditions, an artwork can still be considered an authentic work by the artist even when the artist directs its creation without direct physical involvement.
The Australian has stated that it stands by its reporting and will defend the defamation claim in the Supreme Court of South Australia.
International
Hauser & Wirth Faces Prosecution Over UK Russia Sanctions Violation
On 12 November 2025, the UK branch of the international gallery Hauser & Wirth appeared in Westminster Magistrates’ Court, facing charges under the UK’s Russia sanctions regulations. Authorities allege the gallery made available a high-value artwork to Alexander Popov, a collector who co-manages a well-known art foundation with his wife, despite Popov not being a designated individual under the UK sanctions regime.
Brought by HM Revenue & Customs (HMRC), the case is believed to be the first criminal prosecution connected to the UK’s restrictions on supplying luxury goods to individuals linked to Russia, and the first corporate prosecution under UK Russia Sanctions Regulations. In addition to Hauser & Wirth, the London-based art logistics company Artay Rauchwerger Solomons has also been charged for allegedly violating the same export restrictions. The company entered voluntary liquidation last year.
HMRC alleges that both companies made George Condo’s Escape from Humanity (2021) available to Popov, in breach of the UK prohibition on supplying luxury goods (including, but not limited to, artworks and antiques) valued over £250 to “persons connected with Russia,” which has been in effect since April 2022. Both companies have denied the claims.
No pleas were entered during the initial hearing on 12 November. The case has now been referred to Southwark Crown Court, with a pre-trial hearing scheduled for 16 December 2025. A conviction for the offence can result in a prison term of up to six months and an unlimited fine.
US Supreme Court Hears the Case on Trump’s Authority to Impose Global Tariffs
On 5 November 2025, the US Supreme Court heard oral arguments regarding President Donald Trump’s authority to use emergency powers to impose tariffs on nearly all imports.
The hearing follows rulings by the US Court of International Trade and the U.S. Court of Appeals for the Federal Circuit, which concluded that the President exceeded his authority by imposing global tariffs. The case has raised concerns in the global art market about how it could affect the flow of artworks in and out of the United States.
Historically, artworks and collectibles have often been shielded from tariffs under the UNESCO Florence Agreement, which was designed to facilitate the global movement of educational, scientific, and cultural materials by eliminating customs duties and other trade barriers.
Although the United States has officially withdrawn from UNESCO, it continues to uphold the conventions it has individually ratified, maintaining its international obligations on cultural heritage, education, and scientific cooperation. A White House fact sheet issued on 2 April 2025 notes that items which are subject to 50 USC 1702(b) – including “artworks,” “photographs,” and “posters” – are “not subject to the Reciprocal Tariff.” This exemption remains in place, with one exception: contemporary artworks from China.
For sellers, however, the situation is more complicated because U.S. Customs and Border Protection (CBP) ultimately determine which exemptions apply. CBP officials retain the discretion to revoke import classifications. While fine artworks are generally protected from tariff penalties, other categories – such as antiques, collectible design objects, or works made from mixed materials like metal or wood – may not be. For instance, antiques over 100 years old could be subject to tariffs under the International Emergency Economic Powers Act of 1977 if they are classified accordingly.
Both conservative and liberal judges, however, questioned Trump’s arguments. The judgment is expected to be delivered in two to three months.
UK High Court Rejects Copyright Claims Against Stability AI in Getty Images Case
On 4 November 2025, the UK High Court of Justice delivered a landmark judgment in Getty Images v Stability AI, concluding that Stability AI’s image generator, Stable Diffusion, did not infringe Getty Images’ copyright.
Getty sued Stability AI in May 2023, alleging direct and secondary copyright infringement, trade mark infringement, passing off, and database right infringement. Applying the input –output framework common in AI copyright cases, Getty claimed that direct infringement occurred during the training process, when Stability allegedly copied and used Getty’s images without permission, and that the company had communicated those works to the public. Getty also argued that Stable Diffusion could reproduce or authorise users to reproduce protected works, amounting to secondary infringement.
However, Getty ultimately withdrew its direct copyright infringement claim. The Court found that Stable Diffusion does not store or reproduce complete copies of the original images, and since the model was trained outside the UK, domestic copyright law did not apply. As copyright protection operates on a national basis, the UK court could not extend jurisdiction to foreign training activities.
The judgment therefore focused on the remaining claims. Getty contended that the trained model itself constituted an “infringing copy” under UK law, asserting that the model’s weights reflected unlawful reproductions of Getty’s works if the training had occurred within the UK. Justice Smith rejected this argument, explaining that an AI model which learns from datasets without retaining or replicating the originals does not amount to an infringing copy. Instead, the model weights were characterised as “patterns and features learned over time,” not as reproductions of protected material.
The Court did, however, uphold a limited finding of trade mark infringement. It determined that a few images generated by Stability AI contained altered or blurred versions of the Getty Images watermark, creating a potential risk of consumer confusion. Justice Smith noted that only a handful of examples showed credible “iStock” or Getty-style marks, while most outputs did not display recognisable watermarks – many being indistinct artefacts resulting from the model’s generative process rather than deliberate use of Getty’s branding.
French Police Investigate Stolen Crown Jewels from Louvre
On 19 October 2025, four masked individuals broke into the Louvre’s Apollo Gallery, stealing eight pieces from the French crown jewels in under seven minutes. Notably, the jewels were not insured. The French state self-insures its national collections – meaning it bears both the financial and symbolic loss when cultural treasures are stolen.
French authorities are investigating whether the museum met its legal duty to protect state collections, amid reports of delayed security upgrades. If negligence is found, sanctions or disciplinary action may follow. So far, four people have been charged by the Paris prosecutor, who is overseeing the Louvre robbery investigation.
As the jewels have not yet been recovered, efforts rely on international cultural property law. As national heritage, the jewels cannot be legally sold or exported under French law or the 1970 UNESCO Convention on the illicit trafficking of cultural property. Experts also believe there is hope that the thieves will struggle to sell the stolen jewellery, as both the cut of the diamonds and the extremely rare natural pearls make it difficult for the items to disappear on the black market.
Since then, the Louvre has implemented a new €80 million ($92 million) master plan for improved security in the wake of the audacious $102 million daytime jewel heist that rocked the world last month.
However, the Louvre theft is only the latest and most high-profile in a spate of robberies targeting museums across France. On the same day, 19 October 2025, thieves raided the Maison des Lumières museum in Langres, northeastern France, which is dedicated to Enlightenment philosopher Denis Diderot. They stole around 2,000 gold and silver coins valued at approximately €90,000.
Earlier, in September 2025, thieves stole rare gold samples worth around $700,000 from the National History Museum in Paris.
California Court Rules Bored Ape NFTs Are Not Securities
A US Court in the Central District of California has ruled that Bored Ape Yacht Club NFTs are not securities, meaning they aren’t considered investment contracts under U.S. law. The court applied the Howey test, which evaluates whether something involves (1) an investment of money, (2) a common enterprise, and (3) an expectation of profits from the efforts of others.
The judge concluded that the Bored Ape NFTs did not meet these criteria. They were sold primarily as digital collectibles and membership tokens rather than as investments, and any potential increase in value was not directly tied to the efforts of Yuga Labs, the creators.
This decision is significant for the NFT market, as it suggests that tokens designed for art, community engagement, or utility may not be subject to the same regulatory scrutiny as securities, providing clearer guidance for both creators and buyers.