2018 Volume 22 Issue 1

Abstract

Vestiges of the Romantic image of the artist as a creative genius, the quasi-spiritual reverence conferred on works of art, and the role those artefacts play in constituting national culture set artists apart from other workers. But, like other forms of labour, art work is the application of physical and mental skills to things for individual and social benefit. Like many other forms of work, art work is precarious in an economic system characterised by extremes of winning and losing. In this context, traditional ways of rewarding artists are ineffective and may be arbitrary because they focus on the frequently disproportionate market values of artefacts, rather than the labour expended in producing them. If the mystique of art work is stripped away, and artists are conceived as workers, fairer and more effective ways of rewarding art work may be considered.

Abstract

This article considers the appropriate reach of sui generis legislation dealing with so-called ‘ambush marketing’ in relation to sporting and other major events. Ambush marketing is said to be problematic because of its effects on the exclusivity surrounding such events. This article’s first substantive section elaborates on these harms, which it discusses by reference to deception and confusion, blurring and appropriation. In the second section it argues that while there are plausible arguments that all three harms warrant legal intervention, there are significant dangers in responding to blurring and appropriation concerns via generally-worded actions. As such, the Federal Court was right, in Australian Olympic Committee v Telstra Corporation Ltd, to take seriously the need for a misrepresentation for actions under ch 3 of the Olympic Insignia Protection Act 1987 (Cth).

Abstract

Immersive theatre draws crowds for its interactive and often unpredictable nature. The direct involvement of audience-participants, the prioritisation of multi-sensory experiences and the unconventional spaces in which such productions take place give rise to risks of harm that are not present in traditional theatre. Although potentially riskier than its traditional counterpart, the benefits of immersive theatre for both the individual and the community are such that we should strive to nurture and protect its continued development. This article discusses the law of negligence in Victoria as it pertains to immersive theatre. It is argued that the law fails to provide effective means for immersive theatre artists to defend themselves from claims of negligent liability. The defences do not operate satisfactorily and the swinging pendulum of negligence creates uncertainty in the law. This has the potential to unduly restrict the freedom of action of artists and have a chilling effect on the development of the art form. To ensure that artists are protected and to provide those involved in immersive theatre with more certainty and confidence in their legal obligations, legislative reform is required. It is suggested that a provision similar to s 5M of the Civil Liability Act 2002 (NSW) be adopted in Victoria, with the effect of denying a duty of care in relation to risks that have been the subject of a risk warning in recreational activities. Such a reform would deny a duty of care from the outset, and would not require immersive theatre artists to rely on ineffective defences or shifting judicial trends.

Abstract

This article considers the state of the law in Germany in relation to state power to criticise an author’s published commentary. It considers the constitutional protection of an author against a government body, doing so through the examination of a decision of the German Constitutional Court. Can an author complain on constitutional grounds when his work is withdrawn from circulation by the publisher acting in concert with a government body? How far can the publisher and government go in explaining to the public the course they have taken? Can their explanation in itself provide cause for constitutional complaint? In the case in question, the subject of the author’s commentary was the German-Jewish relationship during the Hitler period and the commentary itself aroused considerable hostility. The Court had the task of delivering a reasoned judgment on the basis of accepted constitutional principles and without participating in the emotions raised by the case.