Publications
Books
Citation: Hugh Dillon and Marie Hadley, The Australasian Coroner’s Manual (Federation Press, 2015)
The Coroners Court presents unique and complex challenges for coroners, lawyers and others working in the jurisdiction, as well as for bereaved families and friends.
This new manual, written by a leading Australian coroner and an academic lawyer with a special interest in the cultural diversity of death rites and customs, provides practical guidance not available in any other single publication in Australia and New Zealand.
The authors address the problems of:
- Identifying deaths reportable to coroners and the over-reporting of natural deaths.
- Deciding the most appropriate, least invasive ways of conducting post-mortem medical investigations.
- Dealing with objections by next of kin to autopsies.
- Responding sensitively and reasonably to the grief and concerns of the bereaved.
- Understanding and accommodating the diversity of death customs and funeral rites in a multicultural society.
- Selecting cases for inquest.
- Managing the coronial investigation and the inquest.
- Working with investigators and Counsel Assisting.
- Analysing accidents, human error and systems failure.
- Developing expertise in a wide range of technical issues.
- Focusing the inquest on death prevention and improving public health safety.
The authors also provide tips for advocates working in the jurisdiction either as Counsel Assisting or representing families or interested parties.
Articles
Citation: Marie Hadley, Sarah Hook, Nikolas Orr, Adam Manning and Rewa Wright, ‘Protest art on contested statues igniting conversations about art, law, and justice’ (2003) VII: Trespass Nuart Journal 78-84.
The expansion of the Black Lives Matter movement in 2020 shined a spotlight on global anti-racist protest not seen since the anti-apartheid movement in the early 1980s. Powerful images of the contestation and removal of statues of historical figures linked to violence, colonialism and slavery were broadcast widely by the media. Three years on, Confederate statues in the US and colonial monuments in Australia, to name just two cases, continue to receive critique yet with mixed outcomes. While US citizens and governments have demonstrated a certain amount of political will in removing symbols of white supremacy from public space, Australia has done little to dismantle its racist symbols and the laws protecting them. …
Citation: Marie Hadley and Clara Klemski, ‘Art Law and Policy and the Appropriation of Aboriginal and Torres Strait Islander Art Styles’ (2022) 25 Media and Arts Law Review 1-34
In 2018 British artist Damien Hirst was accused of cultural appropriation of Aboriginal art from Alice Springs, Australia, for his series of 24 abstract expressionist paintings known as The Veil Paintings. This article uses the contestation surrounding The Veil Paintings to animate a discussion of the legal status of ‘style appropriation’ – that is, the appropriation of Aboriginal and Torres Strait Islander art styles, designs and motifs – under customary law, copyright law, cultural heritage laws and consumer law, and recent art policy and law reform initiatives. While there is momentum in favour of greater regulation of intercultural engagements with Aboriginal and Torres Strait Islander art, particularly following recognition of the cultural and economic harms of fake art and the push for intangible heritage protection, legal protections against style appropriation remain limited in scope under the Australian legal system.
Citation: Kathy Bowrey, Tom Cochrane, Marie Hadley, Jill McKeeough, Kylie Pappalardo and Kimberlee Weatherall, ‘Managing ownership of copyright in research publications to increase the public benefits from research’ (2022) Federal Law Review (forthcoming)
Abstract: Producing and disseminating knowledge is core university business and a collaborative, global activity engaging multiple stakeholders including universities, researchers, governments, Indigenous communities, commercial bodies and the public. While ownership of university inventions attracts scholarly and policy attention, effective management of copyright in research outputs is comparatively neglected. It is, however, necessary to maximise the benefits of publicly-funded research. This article explains current dynamics in academic publishing and research ownership. It seeks to explain the complex interface of copyright law, university policies, customary academic practices, Enterprise Bargaining Agreements, research funder mandates and policies, the guidelines and policies that pertain to Indigenous research, and publishing contracts. The article concludes with proposals for copyright management by universities to maximise opportunities for greater public benefit from Australian research.
Citation: Kathy Bowrey, Irene Watson, Marie Hadley, ‘Decolonising Aboriginal and Torres Strait Islander research’ (2022) 64 Australian Universities’ Review 45-55
Abstract: There is an important but unwieldly research policy infrastructure designed to engage with Aboriginal and Torres Strait Islander research and researchers. This framework links the key performance indicators and policies of funders and institutions to researchers and communities. In this article, we explain the relevant policies and targets, with a view to showing how sector regulation interconnects in practice and identifying ways to strengthen institutional commitments to meaningful engagement with, and implementation of, Aboriginal and Torres Strait Islander research policy. We suggest next steps that are needed to help researchers comply with funder and institution-mandated obligations and to empower Indigenous Peoples to make informed decisions about the benefits of research collaboration with universities.
Citation: Marie Hadley, Sarah Hook, and Nikolas Orr, ‘Ideological Vandalism of Public Statues: Copyright, the Moral Right of Integrity and Racial Justice’ (2022) 9 Griffith Journal of Law and Human Dignity 1
Abstract: This paper considers the regulation of ideological vandalism by the Australian copyright and moral rights regimes in the context of the defacement of public art statues that occured in Australia and overseas during the Black Lives Matter protests in 2020. Statute vandalism is approached as a form of anti-racist or anti-colonial iconoclasm that contributes to discourse around previous and continuing racial inequities. Law is approached as a form of symbolic action that can consolidate the alienation and othering of vulnerable groups in public spaces. The authors investigate whether, when public statues are within the copyright term, intellectual property rights symbolically devalue anti-racist discourse by de-prioritising agonistic art encounters. It is identified that copyright’s exclusive rights do not render direct physical interventions with the statue unlawful, but that the moral right of integrity held by the statue’s creator is problematic. The moral right of integrity privileges the connection between the artist and their work as a matter of reputation, and any public interest in the graffities counter-monument is irrelevant to a finding of infringement, which in our view justifies reform. The paper concludes that public spaces should be democratic spaces, and that intellectual property law in post-colonial states and states with a history of racial injustice should do more in support of this goal.
Citation: Marie Hadley, ‘Historical Contingency of Cultural Appropriation: Government Order no. 7 (1831) and the trade in mokamokai’ (2021) 8 Law & History 25
Abstract: This article explores the historical contingency of cultural appropriation. A close study of the trade in preserved tattooed Māori heads (‘mokamokai’) and the law that regulated the trade between Aotearoa New Zealand and New South Wales – Government Order no. 7 (1831) – is used to reflect upon the nature of intercultural consumption. The conditions under which the retail trade in mokamokai developed and thrived are considered. It is argued that the historical demand for mokamokai is characterised by an oppressive appreciation of cultural difference, and the trade’s supply by Māori revealing of local agency and political acumen. Studying the production, consumption, and regulation of culture in a specific historical site offers insight into the intersection of commercial imperatives, problematic social dynamics, and local practices, furthering understanding of cultural appropriation as a form of unauthorised cultural engagement.
Citation: Marie Hadley, ‘Whitmill v Warner Bros and the Visibility of Cultural Appropriation Claims in Copyright Law’ (2020) 42 European Intellectual Property Review 223
Abstract: The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.
Citation: Marie Hadley and Donna McNamara, ‘Genetic Testing in Sport: Considerations for Young Athletes’ (2020) 45 Alternative Law Journal 303
Abstract: This article uses the experiences of professional footballer Abdelhak ‘Appie‘ Nouri, who suffered a cardiac arrhythmia at the age of 20 years old during a pre-season friendly in 2017, as the stepping off point for examining the use and regulation of genetic testing in sport and the human rights implications of genetic testing child athletes for the purposes of talent identification and performance enhancement. The authors identify recent trends in the use of genetic testing in sport, outline the legal and policy framework that regulates genetic testing in Australia, and consider human rights issues that arise in relation to a child’s decision to undertake or withhold consent for testing.
Citation: Marie Hadley, ‘The Double Movements that Define Copyright Law and Indigenous Art in Australia’ (2010) 9 Indigenous Law Journal 47
Abstract: This article examines the history of the relationship between Indigenous art and the Copyright Act 1968 (Cth) in Australia as a social, historical and cultural product. In particular, it is argued that copyright law’s treatment of Indigenous works is characterized by a double movement of inclusion and exclusion that is, in turn, influenced by the meanings ascribed to Indigenous art and culture in wider society. This double movement, despite being in a constant dialogic, continues to leave its mark on the political and the legal. Whilst the parameters of Indigenous art’s inclusion has widened, the ultimate rejection of cultural difference persists.
Citation: Marie Hadley, ‘Lack of Political Will or Academic Inertia? The Need for Non-Legal Responses to the Issue of Indigenous Art and Copyright’ (2009) 34 Alternative Law Journal 152
Abstract: For more than 30 years, Indigenous art and copyright commentators have levelled indignant and frustrated voices at the state of Australia’s copyright law. The initial focus of critique was the exclusion of Indigenous works from copyright protection, a situation which prevailed until the late 1980s. However, once formal equality between Indigenous and non-Indigenous works was achieved, the focus of commentary shifted to the substantive inequality occasioned by equal rights before the law. The special nature of the Indigenous context was deemed far removed from copyright’s traditional wealth creation function and thus, special, culturally appropriate intervention was seen as necessary to protect Indigenous works from unsolicited reproduction. Commentators looked towards other sources of law, such as confidential information and native title, as well as the possibility of legislative intervention to remedy the deficiencies of the Copyright Act 1968 (Cth).
Book Chapter
Citation: Marie Hadley, ‘Mike Tyson Tattoo’ in Claudy Op Den Kamp and Dan Hunter (eds) A history of Intellectual Property in 50 Objects (Cambridge University Press, 2019) 400
Mike Tyson’s facial tattoo has been described as one of the most distinctive tattoos in North America. It has attracted controversy as an example of the cultural appropriation of ta moko, the sacred culturally embedded tattooing practice of the Maori people of Aotearoa/New Zealand. It has also attracted much media attention for its place at the heart of Whitmill v. Warner Bros., a rare litigated instance of a tattooist enforcing their copyright in a tattoo design. More than this, though, Tyson’s tattoo is an excellent example of the tensions that emerge over the protection of traditional knowledge, and the difficulty of claiming one truth in an intellectual property world that was born in the Western philosophical tradition, and is only now beginning to come to terms with its colonial heritage.
Book Reviews
Citation: Marie Hadley, ‘Jackson, Lauren Michelle. White Negroes: When Cornrows Were in Vogue … and Other Thoughts on Cultural Appropriation. Boston: Beacon Press, 2019, 187 pp. $25.95 cloth’ (2020) 78(3) The Journal of Aesthetics and Art Criticism 370
The politics of cultural appropriation claims and the power dynamics they resist has captured the attention of philosophers, cultural critics, race scholars, communications scholars, and intellectual property law scholars in recent years. Cultural appropriation claims are possessive claims over a tangible or intangible aspect of culture or cultural identity and an objection to a perceived incursion by a cultural outsider. In this context, ‘appropriation’ is broadly understood as exploitative and as including a suite of unauthorised actions such as the physical theft of cultural objects, commercialisation of traditional knowledge, copying of intangible property such as arts styles or musical expressions, seeking inspiration from spiritual beliefs or practices, and self-identification with an ethnicity that is not one’s own. Commentators critical of cultural appropriation typically seek a better understanding of one or more of these phenomena as a means of exposing, and thus better understanding, problematic social, intercultural, and legal relations. To study cultural appropriation in settler colonial states is to study the legacies of slavery, genocide, and disenfranchisement.
Citation: Marie Hadley, ‘K Bowrey, Copyright, Creativity, Big Media and Cultural Value: Incorporating the Author’ (Routledge, 2021) 228 pp.’ (2021) 11(3) Queen Mary Journal of Intellectual Property 397
In Copyright, Creativity, Big Media and Cultural Value: Incorporating the Author, legal historian and intellectual property scholar Professor Kathy Bowrey provides a socio-legal account of the history of copyright in the publishing, film and music industries, with a focus on the late Victorian era to the mid-twentieth century. Key copyright developments, including the introduction of the Berne Convention for the Protection of Literary and Artistic Works (1886), the UK-US settlement over trans-Atlantic copyright piracy (1891), and the modernisation of British copyright legislation (1911), are contextualised against the development of mass media forms of cultural consumption with attention to national identity, market forces, the machinations of Empire, global economic developments, industry pressures, and technological change, amongst other factors. The connections drawn between legislative activity and cultural and political activity are nuanced and insightful, however, it is the historical materialist methodology that is a particularly welcome addition and make the book a most significant contribution to law and society scholarship and copyright historiography.
PhD Thesis
Citation: Marie Hadley, The Politics of Cultural Appropriation Claims and Law Reform (PhD Thesis, UNSW 2019)
This thesis is about cultural appropriation, copyright law, and tattoos. It explores in depth the argument for law reform to prevent the cultural appropriation of Māori and Aboriginal and Torres Strait Islander culture, with a particular focus on the protection of cultural imagery and arts styles. First, the thesis unpacks the nature of cultural appropriation claims as possessive claims, identity claims, and performative utterances. Second, it analyses the ambiguities and contradictions that sit behind cultural appropriation claims, as identified through law reform scholarship and an empirical study of how law interacts with and governs cultural life and artistic practice, with respect to tattoo subculture. Third, it teases out the political stakes of alleging cultural appropriation through a close consideration of historical constructions of cultural difference and intercultural dealings in tattoo in the Pacific region.
Three analytical frameworks of ‘performativity’, ‘law and society’, and ‘desire for the Other’ help frame the inquiry. Doctrinal analysis is utilised to explore private property claims over imagery and art styles, and contextualise discussion of legal exclusion and inclusion of Indigenous peoples and their artforms. Fieldwork exposes how meaning is made outside of the formal legal frame in the everyday lives of artists, and the dynamism and contest that marks cultural production. Historical analysis provides a deeper understanding of cultural appropriation allegations as performances that construct a very specific relationship between appropriation and the colonial past.
In exploring the intersection of cultural appropriation and law from above, from below, and in historical context this thesis exposes the dynamism of cultural appropriation claims, the challenges of transplanting new legal norms within artistic subcultures, and the politics that is engaged, resisted, and produced by claims of cultural appropriation in the domain of copyright law. Ultimately, it is argued that the justification for, and utility of, legal intervention in local sites that already order creativity, appropriation, and conflict resolution in the shadow of the law is neither as straightforward nor as persuasive as is assumed in reform scholarship.