The complex issue of copyright ownership following relationship breakdown heading to the Supreme Court

The Supreme Court of New Zealand was established in 2004 and empowered to hear appeals from 1 July 2004 as the final court of appeal in New Zealand.  Prior to the establishment of the Supreme Court, the final court of appeal was the Judicial Committee of the Privy Council, in London, England.   

Appeals to the Supreme Court can be heard only with the leave of the court. The Court must not give leave to appeal unless it is satisfied that it is necessary in the interests of justice for the court to hear and determine the proposed appeal.

It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal if:

  • the appeal involves a matter of general public importance;
  • a substantial miscarriage of justice may have occurred, or may occur, unless the appeal is heard;
  • the appeal involves a matter of general commercial significance; or
  • the appeal involves a significant issue relating to the Treaty of Waitangi.

Since its inception, the Supreme Court has granted leave for an appeal in 3 trade mark cases and 3 copyright cases.  The Supreme Court has declined to grant leave for an appeal in 13 IP cases. 

If leave is granted, the Supreme Court will specify the approved question/s to be determined on appeal. 

A case covering the interesting and novel issue of the interplay between copyright law and ownership and relationship property has been making its way through the various courts in New Zealand starting in the Family Court, which issued its decision in 2020, culminating in the Court of Appeal which issued its decision earlier in 2024.

The Court of Appeal found, as discussed in more detail in our previous article, that copyright in artistic works were “property” for the purposes of the Property (Relationships) Act 1976 and that Copyrights should be classified as relationship property following the breakdown of the marriage / relationship. 

The Court of Appeal then determined that the Copyrights should remain in the artist’s exclusive legal ownership, with her ex-husband receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property. 

Following an application for leave to appeal to the Supreme Court, the Court has granted leave to appeal and the approved question is whether the Court of Appeal was correct in the answers the Court gave to the questions of law before the Court, namely: 

a) Are the Copyrights “property” for the purposes of the Property (Relationships) Act 1976 (the Act)? 

b) If the Copyrights are property, how should they be classified in terms of the Act? 

The grant of leave extends to the question of what orders should be made consequential upon the answers given to the questions set out above.

We look forward with interest to the Supreme Court’s finding in this case. 

Elena Szentiványi - May 2024

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