Art Case Update - September 2025
Image: Circle and radiating lines geometric motif located on the Southern Burrup. Source: A. Stevens via Murujuga Aboriginal Corporation.
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 an extension to the Australian resale royalty scheme, UNESCO’s approval of world heritage listing for Western Australia's Murujuga rock art, a US NFT trade mark dispute and more.
Australia
Australian Government Has Expanded the Resale Royalty Scheme for Visual Artists
The Australian Government has extended the Resale Royalty Scheme for visual artists to include nine additional countries for which Australian artists are eligible to receive royalties from resales, bringing the total to 26. From 31 March 2025, eligible overseas resales extend to the following countries: Estonia, Greece, Lithuania, Mexico, New Zealand, Poland, Romania, Slovakia and Uruguay. If a work of visual art by an Australian artist is resold in one of these countries, the artist may be entitled to a resale royalty.
Established in 2009, the scheme grants eligible artists a 5% royalty on the resale of original artworks valued above $1,000. Managed by the Copyright Agency, it provides compensation to artists in a more comparable way to the protections enjoyed by authors and songwriters. This latest expansion further enhances international support for Australian artists.
Under the Resale Royalty Right for Visual Artists Act 2009 (Cth) art market professionals are required to report eligible resales to the Copyright Agency. The Agency collects the royalty and pays it to the artist, or their beneficiary. The artist or their beneficiary must be registered with the Copyright Agency in order to receive the payment.
Read more here.
Productivity Commission Proposes Copyright Reform to Support Text and Data Mining
The Productivity Commission has recommended Australia’s copyright laws be reformed to support digital innovation and artificial intelligence. In its interim report Harnessing Data and Digital Technology, released in August 2025, the Commission proposed amending the Copyright Act 1968 (Cth) to introduce a new exception for text and data mining (TDM). This would allow researchers, businesses, creators, and technology developers to analyse lawfully accessed works without infringing copyright.
The Commission noted that comparable exceptions already exist in other jurisdictions, including the European Union, Japan, Singapore and the United Kingdom, and that the absence of a clear Australian framework risks discouraging investment in AI and data-driven research. The proposed reform aims to strike a balance between supporting innovation and preserving the rights of copyright holders. The TDM exception would not amount to a blanket right to use all copyrighted works in every AI model, any use would still need to be considered as ‘fair’ in the circumstances.
The Commission has invited feedback on the proposal, with final recommendations to be delivered in 2026.
Read more here.
Federal Court Grants Interlocutory Relief in Moral Rights Dispute Over Film Credits
On 6 August 2025, the Federal Court of Australia granted interlocutory relief restraining Projector Films Pty Ltd and its director, David Ngo, from promoting the screening of the documentary Never Get Busted! at the Melbourne International Film Festival unless Stephen McCallum was credited as “Principal Director” of the film.
The dispute arose after promotional materials for the Festival listed Mr Ngo as the sole director, with no attribution to Mr McCallum. Similar omissions had occurred at earlier festival showings in the United States. Mr McCallum alleged breaches of his moral rights and misleading or deceptive conduct for not being credit as the “Principal Director” of the film.
Under Part IX of the Copyright Act 1968 (Cth), only one person may be recognised as the “Principal Director” and “author” of a film, carrying moral rights of attribution, protection against false attribution, and integrity of authorship. Although the parties’ Director’s Agreement contained a moral rights waiver, the Court found there was a serious question to be tried, that the balance of convenience favoured Mr McCallum, and that he would suffer greater prejudice if relief was not granted.
The matter is listed for final hearing on 10 September 2025.
Read the interim judgment here.
UNESCO Approves World Heritage Listing for Western Australia's Murujuga Rock Art
UNESCO has officially added the Murujuga Cultural Landscape in Western Australia to the World Heritage List, recognising an ancient collection of Aboriginal rock art that predates both Stonehenge and the Pyramids of Giza.
During the 47th session of the World Heritage Committee in Paris, member states voted unanimously in favour of the inscription. Located in the Pilbara region of WA’s north-west, Murujuga has more than one million petroglyphs, some estimated to be 50,000 years old, including the oldest known depiction of a human face.
Representatives of the Murujuga Aboriginal Corporation (MAC) and Federal Environment Minister Murray Watt attended the Paris meeting. Their advocacy secured support from member states to overturn a May recommendation from UN advisers to refer the bid back to Australia.
That earlier advice to not approve the world heritage listing was based on concerns over the negative impact on the rock art of industrial emissions, particularly from Woodside Energy’s nearby Karatha Gas Plant, which was recently granted a 40-year extension. The International Council on Monuments and Sites (ICOMOS) had warned the site’s conservation was under “major threat” due to the surrounding industrial activity.
As part of the approval, UNESCO members adopted an amendment requiring Australia to continue research and ongoing monitoring of industrial impacts on both the petroglyphs and the wider cultural landscape.
Read the Murujuga UNESCO heritage listing proposal here.
Elder’s Image to Be Removed from Silos Mural after Child Abuse Material Sentencing
A local council is taking steps to remove the image of Indigenous elder Ronald Marks from a well-known silo mural after the 74-year-old was convicted of possessing child abuse material.
In July, Horsham Magistrates’ Court fined Marks $7,500 and placed him on the sex offender register for eight years.
The mural, painted by artist Matt Adnate in 2016, was commissioned by the Yarriambiack Shire Council and features Marks, a Wergaia elder, alongside Wotjobaluk elder Regina Hood and two children, Savannah Marks and Curtly McDonald.
Intended to honour Indigenous culture and the passing of knowledge between generations, the artwork was partly funded by the Federal government and created in partnership with the Barengi Gadjin Land Council.
Yarriambiack Shire Council has begun working with the artist and the Barengi Gadjin Land Council to redesign the silo art.
Read the Council’s statement here.
Right to Take Legal Action for Serious Invasions of Their Privacy
Recent amendments to the Privacy Act 1988 (Cth) now give individuals the right to take legal action for serious invasions of their privacy. A person may be awarded compensation for emotional distress, even without proving financial loss.
This new right only applies in cases of serious privacy invasion, where the person had a reasonable expectation of privacy. To succeed, a claimant must show that:
an invasion of privacy occurred through either an intrusion into their seclusion, such as unauthorised surveillance or recording of private activities, or misuse of personal information, including unauthorised disclosure;
they had a reasonable expectation of privacy, taking into account the nature of the information and the circumstances of its release;
the conduct must have been intentional or reckless, deliberate rather than negligent, and the invasion serious, considering the extent of harm and whether it was maliciously committed; and
the individual’s right to privacy must outweigh the public interest, including factors such as freedom of expression.
This is a developing area of law, and further guidance is expected on how and when works of visual art may fall within the scope of the new privacy tort. These amendments could potentially affect artists who use real-life subjects in their works, such as street photographers. Read more about the amendments here.
IP Australia Confirms That Graphical User Interfaces Are Not Certifiable as Designs under the Designs Act
Recent decisions by IP Australia have confirmed that digital displays, known as Graphical User Interfaces (GUIs), cannot be registered as designs under the Designs Act 2003 due to their transient nature and IP Australia's narrow interpretation of what constitutes a ‘product’. The Designs Act defines a ‘product’ as something manufactured or handmade, and digital displays are generally not considered manufactured or handmade in everyday terms.
The Registrar of Designs in DRiV IP, LLC [2024] ADO 3 and GEA Westfalia Separator Group GmbH [2025] ADO 1 found that GUIs do not include the necessary visual features for a design under current legislation. Section X of the Designs Act 2003 provides that a product’s visual features are to be assessed when it is not operating, such as when a device is switched off. This makes GUIs largely invisible and ineligible for design protection.
These rulings affect designers and applicants seeking protection for digital interfaces in Australia. The Federal Government is considering legislative amendments to clarify that virtual designs, including GUIs, can qualify as products, with further updates on draft legislation expected in late 2025. A similar view was reflected in IP Australia’s 2023 consultation, which sought stakeholder feedback on a series of significant proposed changes to the Designs Act 2003 (Cth), including stronger protection for virtual designs.
International
US Appeals Court Overturns USD $8.8 M. Win for Bored Ape Creator in Trade Mark Case
A U.S. appeals court overturned a USD $8.8 million judgement previously awarded to Bored Ape Yacht Club (BAYC) NFT creator Yuga Labs, in the ongoing legal dispute with artist Ryder Ripps and his business partner Jeremy Cahen over alleged counterfeit NFTs.
Yuga Labs originally filed the lawsuit against Ripps and Cahen in federal court in June 2022, accusing the Los Angeles-based conceptual artist and creative director of false advertising, trademark infringement and cybersquatting, among other claims.
Ripps has argued that elements of BAYC, from its logo to the Apes’ accessories, such as “sushi chef headbands” featuring the word “kamikaze” in Japanese kanji and spiked Prussian Pickelhaube helmets, contain racist imagery and links to the online alt-right. He maintains that his copycat NFTs were intended as a form of satire targeting the original collection.
In October 2023, U.S. District Judge John F. Walter of Central California ordered Ripps and Cahen to pay $1.38 million to Yuga Labs in disgorgement and damages, along with $200,000 in statutory damages for cybersquatting violations. Including legal costs and other expenses, the total judgement amounted to $8.8 million.
However, on 23 July of this year, the Appeals Court overturned this ruling, sending the case back to the Federal Court in California. The Appeals Court found that Yuga failed to establish, as a matter of law, that the defendants’ conduct was likely to result in consumer confusion in relation to its trademark infringement and cybersquatting claims.
Read the full decision here.
U.S. Lawmakers Propose Reforms to Strengthen Claims for Nazi-Looted Art
U.S. lawmakers have proposed the Holocaust Expropriated Art Recovery (HEAR) Improvements Act of 2025, aiming to strengthen claims for Nazi-looted art. If passed, the amendment would remove procedural barriers that have long prevented recovery efforts.
Key changes include removing any statutory time limits for filing claims, allowing retroactive application to ongoing cases, and expanding the “expropriation exception” to allow claims against foreign governments, regardless of the victim’s nationality.
These proposed reforms align with a recent decision by the New York County Supreme Court, which ordered the Art Institute of Chicago (AIC) to surrender Russian War Prisoner – a drawing by Egon Schiele – despite the museum having received it as a donation more than 40 years ago, in 1966. A central issue in the case was the timeliness of the claim. The Court concluded that any delay by the District Attorney was understandable given the complexity of the case. Today, no living witnesses remain, previous witnesses were not cross-examined by AIC and the provenance documentation remains incomplete.
The Court also confirmed that the artwork had been stolen and examined AIC’s due diligence at the time of acquisition and thereafter. Like many cultural institutions, AIC only began serious provenance research relatively recently. When Russian War Prisoner was donated to AIC in 1966, it conducted almost no provenance investigation, only making a minimal inquiry in 2002. It noted that although the due diligence conducted by museum fell short of today’s standards, it assessed the inquiries they had made in the context of evolving museum practices of the time.
Ultimately, the Court ruled that it could exercise jurisdiction over AIC concerning Russian War Prisoner. It justified its jurisdiction by invoking the law of conspiracy, which requires an agreement to commit a crime and an act furthering that agreement. While the Court did not clearly define the conspiracy, it appeared to assume a long-running scheme beginning in the 1950s with New York dealers and extending to AIC’s current possession. The ruling relied solely on the actions of dealers in New York to establish jurisdiction over events concerning Russian War Prisoner which occurred in Illinois.
A Stolen Renaissance Painting Returns to Italy After 52 Years
A British woman has agreed to return a Renaissance artwork to the Italian museum from which it was stolen in 1973. The painting, a depiction of the Madonna and Child by 16th-century artist Antonio Solario, was formally handed over to the Civic Museum of Belluno during a small ceremony on July 21.
Barbara de Dozsa, who inherited the piece from her late ex-husband, had initially resisted returning it. Under the U.K.’s Limitations Act of 1980, she had a legal right to the work, as the law allows ownership of stolen property if its acquisition was “unconnected to the theft” and more than six years have passed.
Despite U.K. law supporting her position, the painting remained listed as stolen in the Interpol database. “She could never bring it into Europe, exhibit it, or sell it legally. At any moment, it could have been seized,” officials noted.
The Civic Museum of Belluno originally acquired the painting in 1872. It was among several works taken during a major theft at the museum more than five decades ago.