JOBNAME: No Job Name PAGE: 3 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3
Articles The art of crime: The application of literary proceeds of crime confiscation legislation to visual art
Natalie Skead* and Jani McCutcheon† Proceeds of crime legislation in every Australian jurisdiction includes, albeit in varying terms, provisions targeting the benefits derived from the commercialisation of crime, frequently referred to as ‘literary proceeds’. There is little doubt that these provisions extend to the confiscation of benefits derived from the depiction of crime in written art forms and film. This article considers the novel question of whether Australian proceeds of crime legislation also captures benefits generated from the commercialisation of visual art. In doing so, we build on the emerging scholarship on the confiscation of the literary proceeds of crime. We explore a host of questions relevant to this form of criminal confiscation: What does it mean to ‘exploit’ criminal notoriety, particularly in the practice and commercialisation of ‘criminal art’? When are benefits ‘derived’ from this exploitation? What is the cause of criminal notoriety, and how are criminal notoriety and artistic reputation reconciled? Is the commercialisation of visual art in this context unique? To fall within the scope of the legislation, must the art depict the criminal exploit, or is it sufficient that the notoriety of the criminal conduct confers an advantage on the artist that facilitates the commercial exploitation of the artwork? What if the artwork only partially depicts the criminal exploit? The analysis of these issues is relevant beyond the particular context of visual art and contributes to the scholarship on the confiscation of literary proceeds more generally. Introduction It is not surprising that the depiction of infamy and crime abounds in the arts. Crime sells. But few would argue with the old adage that crime does not — or, at least, should not — pay. Reflecting ‘[t]he moral revulsion engendered by the perception that the [criminal might have] also profited by his crime’1 and as a strategy to combat rising serious organised crime,2 increasingly robust confiscation of proceeds of crime legislation has over the past two decades been introduced across Australia. A principal object of this legislation is to ‘deprive persons of the proceeds of ... and benefits derived from’3 the
* Professor, School of Law, University of Western Australia. † Associate Professor, School of Law, University of Western Australia. 1 Arie Freiberg, ‘Confiscating the Literary Proceeds of Crime’ [1992] Criminal Law Review 96, 97. 2 Commonwealth, Parliamentary Debates, House of Representatives, 30 April 1987, 2314. 3 Proceeds of Crime Act 2002 (Cth) s 5(a). This article is based on the Proceeds of Crime Act 2002 (Cth), but analogous legislation exists in the states and territories. See Confiscation of Criminal Assets Act 2003 (ACT); Confiscation of Proceeds of Crime Act 1989 (NSW);
253 JOBNAME: No Job Name PAGE: 4 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3
254 (2018) 22 Media and Arts Law Review
commission of offences against the laws of the Commonwealth, states and/or the territories. Each of these crime-derived property confiscation schemes includes, albeit in varying terms, provisions targeting benefits ‘derived from the commercial exploitation of ... notoriety from having committed [a crime]’,4 referred to in some jurisdictions as ‘literary proceeds’. Under Australian confiscation legislation, literary proceeds include proceeds and/or benefits derived by a person from the commercial exploitation of their criminal activity through ‘the publi[cation] of any material in written or electronic form; the use of media from which visual images, words or sounds can be produced; or any live entertainment, representation or interview’.5 Literary proceeds confiscation legislation has attracted criticism, particularly on free speech grounds.6 The very few confiscation proceedings, relative to the numerous examples of literary proceeds ostensibly falling within the legislation, appear to be politically motivated.7 In this article we do not substantively revisit these criticisms of literary proceeds confiscation. Rather, we apply the underlying rationale for introducing confiscation legislation resolving the myriad of issues the confiscation of literary proceeds raises in relation to visual art. While there is no doubt that literary proceeds confiscation provisions apply to benefits derived from the exploitation of a person’s criminal activity in written and oral art forms, including books and films, and other written and oral media, such as magazine and television interviews, their application to visual art is as yet unexplored. This is perhaps surprising, particularly given the number of high profile criminals-turned-artists who are emerging from government-funded prisons and prison art rehabilitation programs. Visual artwork created by criminals, or ‘criminal art’, is carving out a niche in art markets, and generating a plethora of ethical, moral, legal and cultural questions. Amongst these is the uncharted question of whether the financial benefits derived by a criminal for his or her criminal art is confiscable under proceeds of crime legislation: were these benefits contemplated by Parliament when enacting proceeds of crime legislation, or was the anticipated focus solely on cheque book journalism and money-making biographies? If the ambit of the legislation does extend to proceeds derived from the commercialisation of criminal art, a host of questions arise; questions that are
Criminal Assets Recovery Act 1990 (NSW); Criminal Property Forfeiture Act 2002 (NT); Criminal Proceeds Confiscation Act 2002 (Qld); Crime (Confiscation of Profits) Act 1993 (Tas); Criminal Assets Confiscation Act 2005 (SA); Confiscation Act 1997 (Vic); Criminal Property Confiscation Act 2000 (WA). 4 Proceeds of Crime Act 2002 (Cth) s 5(b). 5 Ibid s 153(2). 6 Natalie Skead, ‘Hear No Evil, See No Evil, Speak No Evil ... and Read No Evil: Confiscation of Literary Proceeds Under Australian Criminal Property Confiscation Legislation’ (2018) 92(5) Australian Law Journal 1; Richard Ackland, ‘They’ve Paid the Price, so Let Old Lags Write Their Memoirs’, The Sydney Morning Herald (online), 3 June 2011
The application of literary proceeds 255
also relevant to the confiscation of proceeds derived from other forms of literary, visual and audio media. What does it mean to commercially ‘exploit’ one’s criminal notoriety? When can it be said that a benefit is ‘derived’ from this exploitation? What is the nature of ‘notoriety’ and how does it differ from other notions of reputation? What is the source of criminal notoriety, and how are criminal notoriety and artistic reputation reconciled? Further, to fall within the scope of the legislation, must the art depict the criminal exploit, or is it sufficient that the notoriety of the criminal conduct confers an advantage on the artist that facilitates the marketability of the artwork? And what if the artwork only partially depicts the criminal exploit? In this article we interrogate these questions by reference to a series of criminal art case studies, with a view to both enriching and extending the emerging scholarship on proceeds of crime legislation generally, and to exploring the unique issues generated by visual art. While the details of Australian statutory literary proceeds confiscation schemes have been discussed in detail elsewhere,8 we provide a brief overview of the legislative schemes before examining the important questions they raise. Confiscation of literary proceeds legislation and its application Provisions directed at the confiscation of benefits sourced in, or that can be traced back to, unlawful conduct, or ‘crime-derived property’, are embedded in the proceeds of crime legislation schemes in all Australian jurisdictions. While the crime-derived property confiscation scheme operating in each jurisdiction is distinct, the benefits caught by the schemes are broadly defined to include property, interests in property, services and advantages, wholly, substantially or partly derived or realised,9 directly or indirectly, as a result of unlawful activity.10 It follows that crime-derived property includes not only the actual direct proceeds of unlawful activity but any benefits that can be traced back to any such activity. Schedule 1 pt2s3oftheCriminal Proceeds Confiscation Act 2002 (Qld) provides the following illustration of the reach of the crime-derived property confiscation scheme in that State and is mirrored in the legislation of other Australian jurisdictions:
8 Skead, above n 6; Lucas Bastin, ‘David Hicks and Australian Proceeds of Crime Legislation: Can He Sell His Story’ (2009) 37 Federal Law Review 313. 9 Proceeds of Crime Act 2002 (Cth) s 329 and Criminal Assets Confiscation Act 2005 (SA) s 7 use the terms ‘wholly’ and ‘partly’. Confiscation of Criminal Assets Act 2003 (ACT) s 12 uses the term ‘completely or partly’. Confiscation of Proceeds of Crime Act 1989 (NSW) s 4 and Confiscation Act 1997 (Vic) s 3 use the term ‘substantially’. Criminal Assets Recovery Act 1990 (NSW) s 9 uses the terms ‘all or part’ and ‘wholly or partly’. Criminal Property Forfeiture Act 2002 (NT) s 12 and Criminal Property Confiscation Act 2000 (WA) ss 145, 148 use the term ‘wholly or partly’. Criminal Proceeds Confiscation CT 2002 (Qld) ss 22–3 uses the term ‘all or part’. 10 Proceeds of Crime Act 2002 (Cth) ss 329, 336, 338; Confiscation of Criminal Assets Act 2003 (ACT) ss 10, 12, dictionary; Criminal Assets Recovery Act 1990 (NSW) ss 4, 9; Criminal Property Forfeiture Act 2002 (NT) ss 12, 74; Criminal Proceeds Confiscation Act 2002 (Qld) ss 21–3, 101; Criminal Assets Confiscation Act 2005 (SA) ss 3, 7; Crime (Confiscation or Profits) Act 1993 (Tas) s 4; Confiscation Act 1997 (Vic) s 3; Criminal Property Confiscation Act 2000 (WA) ss 145, 148. See Queensland v Brooks [2008] 1 Qd R 484, 500–1 [58]; Re Ashworth [1992] 2 Qd R 459. JOBNAME: No Job Name PAGE: 6 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3
256 (2018) 22 Media and Arts Law Review
3 Example 1 (1) A is found to have engaged in the serious crime related activity of procuring another person to engage in prostitution over 5 years. (2) Money from engaging in the serious crime related activity was used by A- (a) to lead a flamboyant lifestyle costing, on average, $60,000 for each year; and (b) to pay off a mortgage on the mansion A lives in and a block of income producing home units. (3) The mansion and home units were bought in the 5 years. (4) A- (a) had no assets at the start of the 5 years; and (b) can not show a source of property gained in the 5 years other than income from the units, which produced an annual net income of $20,000. (5) The mansion and units are worth $1m. (6) Under sections 82(1) and 83- ... (a) the $1m current value of the mansion and units is derived proceeds; and (b) the amount of $400,000, made up of the $60,000 mentioned in subsection (2)(a), and the $20,000 mentioned in subsection (4)(b), for each year, is derived proceeds. There is no doubt that crime-derived property may extend to visual art. Indeed, only recently, US authorities have sought to recover valuable artworks by Picasso, Diane Arbus and Jean-Michel Basquiat from Leonardo DiCaprio, who is said to have received them as gifts from criminals or their associates.11 Crime-derived property confiscation provisions allow for the recovery of crime-derived property or, as a substitute, property equal in value to crime-derived property by way of a criminal benefits declaration,12 pecuniary penalty order,13 penalty order,14 or proceeds assessment order.15 In addition, the Commonwealth, Queensland and South Australian legislation provides specifically for the making of a ‘literary proceeds’ order: an order requiring a person to pay to the Crown an amount equivalent to the literary proceeds derived by them in relation to the commission of specified unlawful activity.16 In the remaining Australian jurisdictions, literary proceeds are caught under the broader crime-derived property confiscation provisions identified above. For ease of analysis, unless otherwise indicated, in this article we focus on the literary proceeds confiscation provisions in the Proceeds of Crime Act
11 Eriq Gardner, ‘Feds Look to Seize “Dumb and Dumber To” Rights and Leonardo DiCaprio’s Art’, Hollywood Reporter (online), 15 June 2017
The application of literary proceeds 257
2002(PoCA(Cth) Cth). Section 151 of the PoCA Cth provides a simplified outline of the literary proceeds confiscation provisions found in pts 2–5 of that Act: If certain offences have been committed, literary proceeds orders can be made, ordering payments to the Commonwealth of amounts based on the literary proceeds that a person has derived in relation to such an offence. (There is no requirement that a person has been convicted of the offence.) On application by the Commissioner of the Australian Federal Police, or the Director of Public Prosecutions (‘DPP’),17 if satisfied to a civil standard of proof that a person has committed an indictable or foreign indictable offence, the court may make an order requiring that person to pay to the Commonwealth an amount equal in value to the literary proceeds derived, and that will in the future be derived, by that person.18 Any literary proceeds subject to the respondent’s effective control or that were paid or transferred to another person at the respondent’s request are taken to be the literary proceeds of the respondent.19 The court has discretion as to whether to make a literary proceeds order. In exercising this discretion, the court is required to consider, among other matters, the nature and purpose of the product or activity from which the literary proceeds were derived; whether the product or activity was in the public interest; and the social, cultural or educational value of the relevant product or activity.20 The fact that a person has been acquitted of the offence forming the basis of the literary proceeds orders does not affect the making of the order.21 In addition, if a person’s conviction for the offence on which a literary proceeds order was based is quashed, regardless of the nature of the offence, a court may confirm the order if satisfied that the order could have been made without relying on the initial conviction.22 To date, the application of pts 2–5 of the PoCA Cth has been limited to the confiscation, or attempted confiscation, of financial benefits derived from written accounts of criminal activity and interviews with those criminally responsible. Indeed, only $128 800 has been recovered pursuant to just one literary proceeds order under the PoCA Cth.23 This order relates to the publication of Schapelle Corby’s biography My Story in 2006,24 and an article published by New Idea (Pacific Magazines Pty Ltd (‘Pacific Magazines’)) detailing aspects of Corby’s story for which Corby’s sister, Mercedes, was
17 Proceeds of Crime Act 2002 (Cth) ss 162–6, 338. 18 Ibid s 152. 19 Ibid s 153(4)(d). 20 Ibid s 154. 21 Ibid s 157. 22 Ibid ss 173, 176. 23 Commonwealth Director of Public Prosecutions (‘DPP (Cth)’), Annual Report 2008–2009 (Commonwealth of Australia, 2009) 124–5, 128–9. 24 Schapelle Corby and Kathryn Bonella, My Story: Schapelle Corby (Pan MacMillan Australia, 2006). In 2008, the autobiography was retitled and published as No More Tomorrows: The Compelling True Story of an Innocent Woman Sentenced to Twenty Years in a Hellhole Bali Prison (Mainstream Publishing, 2009). JOBNAME: No Job Name PAGE: 8 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3
258 (2018) 22 Media and Arts Law Review
reportedly paid $15 000.25 Attempts to obtain a second literary proceeds confiscation order against Corby in 2014 following her release from prison and reports that ‘Channel Seven had secured an interview with Schapelle Corby for amounts of up to $3 million’26 were unsuccessful. The only other reported case of proceedings pursuant to the literary proceeds confiscation provisions under the PoCA Cth relates to the attempted confiscation of the proceeds from the sale of David Hicks’ autobiography, Guantanamo: My Journey.27 Hicks was detained by the United States in the Guantanamo Bay detention camp in 2001 on suspicion of providing material support for terrorism. In 2007, following a guilty plea, Hicks was convicted by the United States Military Commission established under the Military Commission Act 2006 for providing material support for terrorism. He was repatriated to Australia to serve out the balance of his sentence.28 Despite legislative amendments aimed at ensuring Hicks’ alleged criminal conduct fell within the scope of the literary proceeds confiscation provisions in the PoCA Cth, these confiscation proceedings were ultimately withdrawn.29 Extending literary proceeds confiscation legislation to criminal art Given the many well-documented instances of notorious convicted criminals turning to visual art whether as part of their rehabilitation, psychological and/or physical therapy, or simply as a money-making endeavour, it is perhaps surprising that there is no record of literary proceeds confiscation legislation being directed at the recovery of the proceeds derived from the commercial exploitation of visual art. Examples of the commercialisation of criminal art abound. Mark ‘Chopper’ Read (‘Read’) spent nearly half his life in jail having been convicted of a series of serious crimes but made efforts to rehabilitate after he was released from a Tasmanian prison in the 1990s. He took up writing, music and art in his later years, citing former Archibald-winner Adam Cullen as one of his inspirations. Read’s artworks have been displayed in a range of venues, from the Michael Boyd Gallery to one of Melbourne’s oldest brothels.30 In his first public exhibition in 2003 at a Fitzroy gallery, Read displayed 26 pieces with
25 DPP (Cth) v Corby [2007] 2 Qd R 318; DPP (Cth), Annual Report 2008–2009, above n 23, 124. For further details of this confiscation see Skead, above n 6, 367–7. 26 Seven West Media Ltd v Commissioner, Australian Federal Police [2014] 223 FCR 234, 241–2 [35]. 27 David Hicks, Guantanamo: My Journey (Random House, 2010). 28 On 3 August 2011, the New South Wales Supreme Court made a restraining order freezing the proceeds from the sale of David Hicks’ book under the Proceeds of Crime Act 2002 (Cth). See Angus Martyn, ‘Progress of the United States Military Commission Trial of David Hicks’ (Research Note No 33, 2004–05, Parliamentary Library, Parliament of Australia, 2005); Nigel Brew et al, ‘Australians in Guantanamo Bay: A Chronology of the Detention of Mamdouh Habib and David Hicks’ (Chronology, Parliamentary Library, Parliament of Australia, 2007). 29 DPP (Cth), ‘Statement in the Matter of David Hicks’ (Media Release, 24 July 2012). For further details of these confiscation proceedings and the circumstances of their withdrawal, see Skead, above n 6, 368–70. See also Brian Tamberlin and Lucas Bastin, ‘David Hicks in the Australian Courts: Past and Future Legal Issues (2008) 82 Australian Law Journal 774. 30 ‘Five former criminals who came to fame in the art world after a life of crime’, ABC News JOBNAME: No Job Name PAGE: 9 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3
The application of literary proceeds 259
price tags ranging from $1200 to $4800. ‘He sold all but two pieces, earning himself more than $40,000.’31 Subsequent exhibitions across Australia had similar success, frequently selling out on the first night.32 Myuran Sukumaran was executed by firing squad in Indonesia in April 2015 following his conviction of drug-trafficking. Accepting testimony that he was a co-ringleader of the notorious ‘Bali Nine’ heroin-smuggling operation, in 2006 the Denpasar District Court sentenced Sukumaran to death. In 2011, the Supreme Court of Indonesia affirmed his sentence. The arrest, trial, conviction and sentencing of Sukumaran and his co-accuseds attracted relentless media attention over a protracted period. While on death row, Sukumaran turned to art to express himself. He studied for a degree in fine arts through Curtin University and established himself as an accomplished artist. His works have been exhibited in art galleries across Australia both before,33 and after, his execution.34 These two of numerous examples of criminal art prompt us to question whether literary proceeds confiscation legislation extends to confiscation of the benefits derived from this art form. Statutory definition of literary proceeds Literary proceeds are defined in s 153 of the PoCA Cth as: 153 Meaning of literary proceeds (1) Literary proceeds are any benefit that a person derives from the commercial exploitation of: (a) the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence or a foreign indictable offence; or (b) the notoriety of another person, involved in the commission of that offence, resulting from the first mentioned person committing that offence. (2) The commercial exploitation may be by any means, including: (a) publishing any material in written or electronic form; or (b) any use of media from which visual images, words or sounds can be produced; or (c) any live entertainment, representation or interview.
(online), 17 July 2015
260 (2018) 22 Media and Arts Law Review
Under this section, commercial exploitation includes using any medium to produce a visual image. This definition clearly covers visual art in any medium. Such an expansive application of the legislation is confirmed in the Explanatory Memorandum to the Proceeds of Crime Bill 2002 (Cth) (‘PoCA Bill’) which, while giving examples of the various forms commercial exploitation may take, including pictorial matter, makes it clear that the examples given do not constitute an ‘exhaustive list’ and that: It is intended that a court may find that a person has commercially exploited their involvement in an indictable offence by any other means where the marketability of the product generating those benefits is related to the person’s involvement in the commission of an indictable offence or a foreign indictable offence committed by the person.35 The reference to ‘by any other means’ in the Explanatory Memorandum is sufficiently wide to include visual art. Status of copyright ‘Benefit’ is defined in the PoCA Cth only to clarify that a service or advantage is a benefit.36 Otherwise, it bears its ordinary meaning and typically includes property and interests in property. It is, therefore, broad enough to include the intellectual property of the copyright in artistic works, and consequent benefits derived from copyright, including license fees, royalties,37 and any damages from copyright infringement. Under copyright law, the criminal artist is an author, and copyright subsists in their original artistic works.38 Copyright confers exclusive rights such as reproduction and publication,39 the exercise of which may be necessary in ordinary artistic practice, and certainly necessary to gain economic reward from the copyright. Therefore, a literary proceeds order having the effect of assigning the copyright in an artistic work to the Crown would risk effectively vitiating the value of the copyright and artwork. Corby assigned the copyright from her autobiography, My Story: Schapelle Corby, to her sister and brother-in-law.40 These assigned rights and resultant royalties were traced back to Corby and seized as a benefit. While it may be unlikely that the benefit for the purposes of a literary proceeds order would include the artwork itself, since that is property created by the criminal rather than received, benefits derived from visual art would include the proceeds from the sale of the artistic work and copyright in that work. Meaning of notoriety It is a requirement of the definition of literary proceeds in s 153 of the PoCA Cth that the benefit a respondent derives be the result of the commercial exploitation of either his or her own notoriety resulting from him or her
35 Explanatory Memorandum to the Proceeds of Crime Bill 2002 (Cth) Bill, 56. 36 Proceeds of Crime Act 2002 (Cth) s 338. 37 See, generally, Copyright Agency, Resale Royalty (12 November 2018)
The application of literary proceeds 261
committing a relevant offence, or the notoriety of another person resulting from the respondent committing the offence where that other person was involved in the commission of the offence. Numerous laws engage with concepts of reputation, recognising it as a form of property that can be exploited. For example, to succeed in an action for passing off, the claimant must establish reputation in the relevant forum, as held by Lord Diplock in Erven Warnick BV v J Townend & Sons (Hull) Ltd.41 Several celebrities have successfully brought an action in passing off, among them INXS,42 and Paul Hogan.43 Since the action is essentially founded on reputation and misrepresentation resulting in harm,44 there is nothing in principle barring a plaintiff’s claim on the basis that his or her reputation was ‘notorious’. By contrast, in defamation, a plaintiff’s notorious reputation may significantly reduce the prospects of success.45 While scholars have explored the multifarious notions of reputation in the law,46 notoriety has a distinct meaning within a broader concept of reputation and has been less scrutinised. In the absence of a statutory definition, notoriety is to be given its ordinary or natural meaning,47 which, according to the Oxford English Dictionary, is: ‘[t]he state or condition of being ... famous or well known, esp. for some reprehensible action, quality’.48 The Explanatory Memorandum to the PoCA Bill explains the notoriety requirement (in the General Outline) as follows: The Bill introduces provisions for the forfeiture of literary proceeds, which are benefits a person derives from the commercial exploitation of their notoriety from committing a criminal offence. ... In general those proceeds tend to fall outside the scope of recoverable proceeds of crime as they are often not generated until after the person has been convicted (and achieved notoriety).49
Notoriety and causation Multiple questions of causation arise in the context of notoriety and literary proceeds. First, notoriety must be linked to criminal conduct. Despite the terms of s 153 of the PoCA Cth, as expounded by the Explanatory
41 [1979] AC 731, cited by the High Court in JT International SA v Commonwealth (2012) 250 CLR 1, 104 [292]. 42 Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330. See also Jenny Ng, ‘Protecting a Sports Celebrity’s Goodwill in Personality in Australia’ [2008] Sports Law eJournal
262 (2018) 22 Media and Arts Law Review
Memorandum,50 the link between the person’s notoriety and the commission of a confiscable offence may be tenuous. Section 152 of the PoCA Cth itself is clear that the person need not have been convicted of the offence for his or her literary proceeds to be confiscated. It is sufficient that the court is satisfied that he or she has committed the offence. This assessment is made in civil proceedings,51 imputing a civil standard of proof.52 This tenuity is exacerbated by the requirement that a person’s notoriety need only result ‘indirectly’ from his or her probable commission of the offence in question. This may be particularly pertinent where the crime itself is less relevant to the artist’s notoriety than the artist’s subsequent experience in the justice system. For example, the public is likely more interested in the personal trauma and fortitude of Sukumaran than his foolish drug trafficking. By contrast, Read’s notorious criminal exploits remained the focus of the public’s fascination with Read to his dying day and beyond. Second, notoriety is a type of fame, and the source, cause, composition and context of fame is complex. A person’s notoriety would seldom be attributable solely to the probable commission of a crime. It may, for example, be the subsequent media attention that results in, or increases, the notoriety. In this sense, the criminal may not be responsible for the notoriety, even if they are responsible for the criminal acts. This challenges the normativity of a scheme which potentially penalises a criminal based on a notoriety which they themselves do not foster. And it may be impossible to ever uncouple the criminal from the artist. Third, the literary proceeds must be ‘derived’ from the commercial exploitation. Courts have given ‘derived’ its ordinary English meaning: ‘to get or obtain from a source, to originate from’.53 But the application of this meaning to literary proceeds, particularly those derived from visual art, is far from simple. Notoriety is an aspect of a person’s reputation, and reputations are multifaceted, as are humans. Artistic and criminal reputations may co-exist, and may shift in comparative weight depending on changing circumstances. For example, a person may already be a famous artist, but their links to criminal activity may transform their fame to notoriety, possibly increasing the demand for, or interest in, their work. For example, Nigel Milsom is an award-winning painter who in 2014 won Australia’s most lucrative art award, the Moran Prize. His girlfriend accepted the prize on his behalf because he was in jail serving a six-and-a-half year sentence for a 2012 armed robbery which he committed under the influence of drugs and alcohol.54 In 2013, Milsom was convicted and imprisoned.55 He was released
50 Ibid 56. 51 Proceeds of Crime Act 2002 (Cth) s 315. 52 Ibid s 317. 53 See Commissioner of the Australian Federal Police v Hart [2016] QCA 215 (29 August 2016) [131]; DPP (Cth) v Corby [2007] 2 Qd R 318. 54 Ben Collins, ‘How Nigel Milsom, who just won the $100,000 Archibald Prize, wound up in prison for robbery’, Business Insider Australia (online), 17 July 2015
The application of literary proceeds 263
on parole in April 2015, the same year he won the $100 000 Archibald prize,56 and continues to sell his artworks.57 We ask, is Milsom now deriving benefits from his pre-crime reputation as an artist, or his post-crime notoriety? On the other hand, if a person enters prison as a criminal, but emerges as an artist, which aspect of their reputation prevails — the criminal or the artistic? In both examples, there is difficulty in isolating the causal source of the literary proceeds. It is important to note, however, that the literary proceeds confiscation provisions do not mandate that the dominant, or even a substantial, cause of the literary proceeds be the exploitation of criminal notoriety. It is irrelevant that other factors may have contributed to the marketability of the artwork. As provided in the Explanatory Memorandum to the PoCA Bill, it is sufficient that the ‘marketability of the [artwork] generating [the] benefits is related to the person’s involvement in the commission of an indictable offence’.58 It is the marketability of the artwork arising directly or indirectly from the artist’s criminal conduct that constitutes the commercial exploitation of the person’s notoriety. Read provides a glaring example of literary proceeds having been derived from criminal notoriety. In 2003, the State Library of Victoria was criticised for buying a Read self-portrait, Tast Ful Old Criminal, for $1450. In media reports the library defended the purchase not only on the basis that the painting had artistic merit, but that Read ‘is an interesting character in the state’s history. Not a hero, but an interesting character.’59 What made Read ‘interesting’ and his art marketable was his criminal past. As one commentator notes, ‘[h]e doesn’t claim to be an outstanding artist and understands that his paintings sell because of his notorious underworld profile’.60 This was overtly acknowledged by gallery owner Nathan Pooley, who told 7 News: ‘His history, which has totally been ingrained in our culture ... I think that’s what increases the price.’61 In a similar vein, London’s notorious and murderous Kray twins also turned to art, their works regularly selling for considerable sums. Ally Walsh, from the Anne Peaker Centre for Arts in Criminal Justice in London, says viewers: imagine that the underworld might be revealed by having access to this work ... Suddenly the taboo life of people in prison is available to the public. Even if it’s not
jailed’, Daily Telegraph (online), 21 September 2013
264 (2018) 22 Media and Arts Law Review
to fully understand [it], it’s just an attempt to try and glimpse that world. That desire is very compelling. That’s what’s driving this market.62 Must the artwork depict or reference the criminal offence? Walsh’s statement may suggest that, to constitute literary proceeds, the artwork from which the benefit is derived must depict or reference the criminal offence. Indeed, the Explanatory Memorandum to the PoCA Bill states that: a literary proceeds order is to be available where a person, at any time after the commencement of the legislation, derives a benefit from the publication of any material concerning the circumstances of an indictable offence committed by that person.63 This reflects a legislative intention that the material, in this case an artwork, reference the criminal act. However, this intention is not reflected in the terms of s 153 of the PoCA Cth which simply require notoriety resulting from a crime and the commercial exploitation of that notoriety. On an expansive reading of the PoCA Cth, the method and context of the exploitation is irrelevant. It may be effected through selling art, giving interviews, appearing on reality television, writing books, or even dancing on a street corner. This may be understandable, but it also may be pernicious in effect. Provided the criminal notoriety is the product being spruiked, then perhaps it is immaterial whether the criminal expressly refers to their criminal history in the medium through which the notoriety is exploited. Let’s imagine that Corby is invited to participate in a reality television show, but doesn’t utter a word about her criminal history during the entire show. Should her earnings be confiscated? One might argue that they should because, but for her criminal notoriety, she would not have been invited to appear on the program. On the other hand, where might this end? If Corby resumes her old career as a beauty therapist, a significant proportion of her customers would no doubt patronise her because of their interest in her criminal history. Should that portion of her earnings be disgorged? There may be a factual causal link between her earnings and her criminal notoriety, but perhaps the more pertinent question is whether she has exploited that link, a separate issue discussed below. Contrasting the provisions in the PoCA Cth, analogous legislation in Queensland expressly requires that the literary proceeds be derived from ‘a depiction of the offence in a movie, book, newspaper, magazine, radio or television production, or in any other electronic form’.64 This requirement is also reflected in the numerous ‘son of Sam’ laws in the United States.65 The distinction is significant, and illuminates the difference between art and
62 Sophie Grove, ‘When Criminals Make a Profit from Their Prison Art’, Newsweek (online), 28 August 2009
The application of literary proceeds 265
literary text as a means of communicating a message. The ‘message’ inherent in art may be nebulous and is ultimately far more subjectively determined than the relatively crisper meaning of literary text.66 Using Read’s work as an example, his art is abstract, or, if it tells a story, it frequently references Ned Kelly rather than Read’s own criminal exploits. And yet, Read’s artistic business model relied heavily on his criminal notoriety. While the proceeds from the sale of Read’s work may be confiscable under the Commonwealth literary proceeds regime, they would not be so under the Queensland regime. The Queensland legislation, we suggest, has some advantages in containing the potentially unlimited scope of the Commonwealth legislation. In Corby’s case, for example, it is doubtful that the acts constituting ‘beauty therapy’ have the capacity to specifically reference criminal conduct, unless Corby regales her clients with recounts of her criminal exploits as she applies cucumber slices to their eyes. This may raise further issues relating to the distinction between the artist who deliberately exploits their criminal notoriety for financial benefit, and the artist selling their work who simply happens to be an ex-criminal, even if a notorious one. If the artwork depicts the artist’s criminal activities, then under both scenarios there is a strong argument that the artist is commercially exploiting their notoriety. But what of the artist who is genuinely seeking to shed their criminal notoriety and replace it with a legitimate artistic reputation, producing work that does not reference the artist’s criminal past? Should the legislation capture the proceeds from the sale of such art even if its marketability is enhanced as a result of the artist’s lingering notoriety? And where the art partly depicts the crime, how comprehensive is the confiscation? How does the legislation accommodate art that may only constitute, for example, a 20 per cent depiction of the criminal exploit and 80 per cent other composition? Can the allocation be accommodated in the confiscation order? Commercial exploitation of criminal notoriety The literary proceeds confiscation provisions require the commercial exploitation of criminal notoriety ‘by any means’. The legislation does not expressly require the criminal to engage or participate in, or to encourage, the commercial exploitation. It simply prohibits the criminal benefiting from the commercial exploitation. As noted, inherent in the notoriety requirement are risks associated with the cause, control and perpetuation of an artist’s criminal notoriety. Crime and criminals are salacious, and the appetite for stories and objects relating to them such as ‘murderabilia’,67 and which may extend to criminal art, is considerable. It follows that the commercial interests of galleries, private sellers and the media may prompt the continuous reinforcement of the link between artworks and their criminal creators. An artist may have no means of suppressing the public’s appetite for stories about
66 Compare, eg, J H Wilkinson, ‘Subjective Art, Objective Law’ (2010) 85 Notre Dame Law Review 1663, 1665–9, where the language is of expression, perception and experience, with 1673–4, where the language of structure dominates. Both, however, are more subjective than the relatively objective nature of law. 67 Kimberly Leonard, ‘Murderabilia: When Does a Fascination With Crime Go Too Far?’, US News & World Report (online), 18 December 2013
266 (2018) 22 Media and Arts Law Review
them and their crime, or of controlling the media circulating those stories. Notoriety may be self-perpetuating and out of an artist’s control. And yet the legislation will continue to ensure the artist does not benefit from the commercial exploitation of the inextricable yoke between them and their criminal past. Read, for example, was expert at consciously exploiting his criminal profile. In The Real Chopper: The Man Behind the Legend Inside and Out, Adam Shand writes: ‘[h]e knew his living after jail was built on his reputation for violence and insanity. So he gave people what they wanted’.68 In a sense, Read’s criminality became an industry. By contrast, the ‘Postcard Bandit’, Brenden Abbott, who remains in prison and about whom media reports concerning his criminal notoriety continue to abound, has quietly practised his art. To our knowledge, he has not had a commercial exhibition of his work, and there is no evidence of him retaining proceeds from the sale of his work.69 While there is a report of attempts to sell his works,70 there is no evidence of a market for his art. Another counterpoint to Read is career criminal and convicted murderer Roy ‘Red Rat’ Pollitt, who from the age of 18 served 36 years in jail. During his imprisonment he turned to art. He left jail having made $100 000 from the sales of his work, and was soon accepting commissions of $20 000.71 His work clearly stands on its own merits, and his success is not leveraged off his criminal notoriety. In one catalogue description, for example, there is no mention of his criminal history.72 One gallery owner who exhibited his work claims that most buyers are unaware of Pollitt’s criminal background, saying ‘[h]e is a perfectionist who keeps a low profile. We have collectors who are rallying around Pollitt’s work’.73 There is no causal requirement under the literary proceeds legislation that an artist actively develops or maintains their notoriety. It simply searches for a link between the marketability of the artwork and the artist’s criminal notoriety. But the legislation does require more than the mere evolution of criminal notoriety; it demands the commercial ‘exploitation’ of it. The benefit must also be derived from that commercial exploitation.74 Exploitation implies some positive, deliberate act that takes advantage of the criminal notoriety, not mere acquiescence in the notoriety. That the benefit is derived
68 Quoted in Janet Fife-Yeomans, ‘Mark “Chopper” Read wanted to be a famous criminal but first he had to change his name: Chopper Pepper just wasn’t menacing’, The Daily Telegraph (online), 26 September 2014
The application of literary proceeds 267
from the commercial exploitation mandates a causal link between the benefit and the commercial exploitation. This exploitation requirement suggests that artists who are determined to leave their criminal past behind them and forge a reputation dependent on their art rather than their criminality should be exempt from confiscation. For example, in the United States, James Allridge was on death row for murder. While in prison, he taught himself to draw and partly financed his legal defence by selling his art online. The actress Susan Sarandon famously visited him in prison and encouraged his work. Andy Kahan, director of Houston’s Victims Assistance Center, claimed that Allridge’s victim ‘was murdered for $300, and now his killer is gaining fame and notoriety and getting visits from Hollywood celebrities — and all because he killed somebody’.75 But was it ‘all because he killed somebody’? Or was it because he was working at forging a reputation as a rehabilitated artist? The exploitation of one’s criminal notoriety may, to some extent, be unavoidable. To make a living as an artist demands self-promotion, possibly including interviews. Artists’ statements describing their work and its origins are commonplace, and art usually surfaces from an artist’s experiences and histories. It is unremarkable that an artist’s criminal histories may be recounted in order to give context and background to the work. For example, in 2016 Nigel Milsom exhibited a show at a Newcastle gallery, ironically and perhaps not co-incidentally, named The Lock-Up, which formerly functioned as a jail. Milsom’s show exhibited paintings and structural sculptures, particularly made for cells. He said: The idea for the cells came from when I was in jail ... It’s so anti-human, post-human almost, because everything is just keys, and doors, and metal and concrete. The only sort of time nature interrupts that is through shadows in your cell at night, or hearing bird calls. And so, not that it’s about me being in jail, I just had to open up about what it was like to be in a cell. You’re isolated from nature ... it’s built to separate you from nature, even the grass in jail is plastic. It’s like fake grass. It was just something that came to me. I didn’t have to think about it.76 Milsom may have referenced his criminal past in this work, but whether this constitutes commercial exploitation of his notoriety is questionable. An artist’s criminal past may be an integral part of their artistic identity, resulting unavoidably in some link between their reputation as an artist and their notoriety as a criminal. Law enforcement and judicial discretion Perhaps the answer to the disquieting issues raised by literary proceeds confiscation schemes in the context of visual art, at least at a Commonwealth level, lies in the judicial discretion afforded a court in making a literary proceeds order under the PoCA Cth.77 In exercising this discretion the court is
75 Kris Axtman, When inmates create art, should they profit? (17 August 2004) The Christian Science Monitor
268 (2018) 22 Media and Arts Law Review
required to consider a range of circumstances including the nature and purpose of the product or activity from which the literary proceeds were derived; whether the product or activity was in the public interest; and the social, cultural or educational value of the product or activity.78 The nature and purpose of the product or activity may be varied. Clearly, the nature of the product is visual art, and the nature of the activity is the production of it. But the purpose of the art may be manifold, and implicates almost existential questions about the nature, purpose and meaning of art. It is also not clear from the legislation whether the relevant purpose to be considered is the subjective purpose of the artist, or the more objective social and cultural purposes of art, or both. The social, cultural or educational value of visual art may be considered significant,79 and encouraging criminal art may be in the public interest. A public benefit may result from ex-criminals fostering new careers and skills, and in particular skills which enable them to make a legitimate living, potentially diverting them from crime as a means of making ends meet. Confiscating the proceeds from the sale of their art may stunt the criminal’s artistic progression, and the ability of the rehabilitated criminal to earn a living. Realistically, employment prospects for most ex-criminals are dim, and criminal artists may have few options for earning a living other than through their art. London’s Koestler Trust, a UK prison art charity, overtly promotes art by offenders. Its mission statement declares ‘[w]e encourage ex-offenders to change their lives through taking part in the arts, and we challenge negative preconceptions of what ex-offenders are capable of’.80 Tim Robertson, director of the Koestler Trust, advocates the exhibition of prison art: ‘On the whole, it’s to the benefit of all of us that the work is exhibited ... It is a way of rebuilding [a prisoner’s] relationship with society’.81 Beneficiaries of the Koestler Trust work as artists and in the arts, for example by supervising the artworks at exhibitions, welcoming visitors and leading tours of exhibitions.82 Here we might make a salient distinction between proceeds emanating from literature, and those based on visual art. When Corby wrote her story, she was not apparently demonstrating a commitment to a new life as a working writer. In this respect, she can be contrasted with Read, and other ex-criminals-turned visual artists who legitimately seek to earn a living from their art. In his final interview before dying, Read expressed a genuine interest in knowing whether people thought he was a good writer or a good artist.83 In these circumstances, we argue the proceeds of crime may be tolerated as being in the public interest.
consider, among other matters, whether the commercial exploitation that forms the basis of the literary proceeds in question was in the public interest; and the social, cultural or educational value of the relevant product or activity. See Skead and Murray, above n 7. 78 Proceeds of Crime Act 2002 (Cth) s 154(b). 79 See generally Gerald Bast, Elias Carayannis and David Campbell (eds), Arts, Research, Innovation and Society (Springer, 2015). 80 About Us, Koestler Trust
The application of literary proceeds 269
Given the potential public benefits of criminal art, there is another discretion which is critically important: that of the law enforcement authorities who make the decision to seek a literary proceeds order. That decision is likely to be influenced by pragmatic issues such as whether the value of the literary proceeds justifies the public expense of prosecuting the application.84 In this respect, the distinction between art and literature is again germane. Art sells once, books sell multiple copies, and their publication is usually preceded by a generous advance and followed by the payment of ongoing royalties. Further, the numerous questions we explore in this article reveal the complexity of the legal issues arising in relation to the confiscation of benefits derived from the commercialisation of visual art resulting in uncertainty as to the potential success of confiscation proceedings. There may also be a lack of political will, and prosecutors will doubtless be sensitive and respond to community sentiment.85 One can imagine heated public backlash, for example, if a literary proceeds order was sought against Sukumaran as he languished on death row. Sukumaran’s notoriety was complex. Early in his prison sentence, his notoriety related to his drug trafficking. But over time this faded and was supplanted by a more noble fame for his redemption and rehabilitation through art, and as a symbol for the perniciousness of the death penalty. In a posthumous exhibition of his work, the hosting gallery noted how the exhibition highlighted ‘the importance of forgiveness and compassion for humanity, while proving the profound power of art to change lives’.86 On the other hand, one can imagine overwhelming public approval for a literary proceeds order directed against a convicted child killer turned artist whose work glorified the crimes. Extending literary proceeds confiscation legislation to art crime A further issue arising in relation to the confiscation of the benefits derived from the commercialisation of visual art is whether proceeds from the commission of a ‘visual art offence’ are confiscable. The literary proceeds confiscation provisions under the PoCA Cth apply in the face of any indictable offence or foreign indictable offence.87 Section 338 of the PoCA Cth defines an indictable offence as ‘an offence against a law of the Commonwealth that may be dealt with as an indictable offence’; that is, an offence under Commonwealth legislation that is punishable by imprisonment for a period exceeding 12 months.88 While some of the more typical offences involving visual art such as graffiti and obscenity are primarily criminalised under state legislation and therefore
84 ‘In all jurisdictions, public prosecutors are not supposed to seek convictions at any cost. Instead, principles of accuracy, neutrality and efficiency should guide their decisions’: Laurène Soubise, Prosecutorial Discretion and Accountability: A Comparative Study of France and England and Wales (PhD Thesis, University of Warwick and Université Lumière Lyon 2, 2015) 89. The area of prosecutorial discretion is beyond the scope of this article. 85 Skead, above n 6. 86 Myuran Sukumaran — Another Day in Paradise, Campbelltown Arts Centre
270 (2018) 22 Media and Arts Law Review
do not fall within the PoCA Cth, more serious offences involving visual representation may well be indictable offences under Commonwealth laws and therefore fall within the ambit of the PoCA Cth. Child pornography is an example. It is an offence punishable by up to 15 years imprisonment to ‘transmit, make available, publish, distribute, advertise or promote child pornography material’.89 However, while this may be an indictable offence under the PoCA Cth, it is arguable that any benefits that may be derived from the commission of the offence are unlikely to be derived as a result of the commercial exploitation of the notoriety of the paedophile, but rather as a result of the subject matter of the pornographic material. While not falling within the ambit of the PoCA Cth, benefits derived from state-based visual art crimes may be caught by state confiscation legislation. There is, for example, a burgeoning online market for replica graffiti.90 In Queensland graffiti is dealt with under s 469(1) of the Criminal Code 1899 (Qld) which provides that ‘[a]ny person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable ... to imprisonment for 5 years’. Such an offence is prosecuted by indictment and it is, therefore, an indictable offence.91 The literary proceeds confiscation provisions in ch 4 pt 1 of the Criminal Proceeds Confiscation Act 2002 (Qld) apply to ‘a person convicted of a confiscation offence’92 which is, in turn, defined in s 99 of that Act as including an ‘indictable offence, whether dealt with on indictment or summarily’. Again, however, the issue arises as to whether any benefits derived by the graffiti artist are the result of the commercial exploitation of his or her criminal notoriety or whether they are simply the result of the criminality of the artwork itself. As illustrated above, literary proceeds confiscation provisions do not in their terms appear to target art that is created illegally. Rather the provisions are concerned with benefits derived from the exploitation of the criminal notoriety of the artist: they are about the notoriety of the person creating and subsequently profiting from the art, rather than the criminality of the artwork itself. It follows that if the marketability of the artwork is not related to the person’s involvement in the commission of a criminal offence, it is, on a strict interpretation of the legislation, not captured by the literary proceeds provision in the legislation. That said, the very fact that the production of the artwork is, in and of itself, a confiscable offence invites the application of the legislation through the confiscation of criminal benefits rather than the crime-derived property provisions. Indeed, it may be artificial to separate the criminality and, therefore, marketability of the artwork from the notoriety of the artist whose crime lies in creating the artwork. The English-based graffiti artist, Banksy, provides a clear example of this symbiosis.
89 Criminal Code 1995 (Cth) s 474.22. 90 Melbourne Graffiti
The application of literary proceeds 271
Extending literary proceeds confiscation legislation to proceeds of criminal art derived by third parties According to the Explanatory Memorandum to the PoCA Bill, s 152(1) of the PoCA Cth: ensures that literary proceeds orders will be available only against persons who were parties to the offence. Other persons involved in the publication, for example publishers or film-makers who, in good faith and for valuable consideration, benefit from the publication of the product, will not be liable to such orders.93 In relation to visual art, protected third parties might include galleries, auctioneers, patrons, sellers, museums and exhibiters acting in good faith and for valuable consideration. The reference to good faith in the Explanatory Memorandum is interesting if not somewhat concerning. It is interesting because the requirement for third parties to act in good faith in the exploitation of criminal notoriety is not found in the legislative text. While the PoCA Cth clearly prohibits a criminal profiting from their own story, it tolerates third parties profiting from a criminal’s notoriety. It is as a result also concerning because third parties benefiting from the sale of a notorious criminal’s artwork may deliberately exploit the artist’s notoriety in order to encourage and drive up the market for the artworks, thus perpetuating the notoriety and enhancing the likelihood that benefits from the art are at least in part derived from the exploitation of that notoriety. Although the gallery may not have acted in good faith, the benefit it derives from the sale of the artwork would not fall to be confiscated as literary proceeds. Galleries or auction houses may argue that reference to the criminal history of an artist is unavoidable. For example, any auction of the Kray brothers’ works will inevitably reference their notoriety simply by invoking their names in the catalogue, due to their infamy as callous murderers. Exhibitions of ‘criminal art’ make a point of telegraphing the criminality of the artists, even if they are unknown, because the point of the exhibition is to display art by criminals. For example, a 2016 exhibition of prisoners’ art by the Abrons Arts Center in New York was entitled ‘On the Inside: A Group Show of LGBTQ Artists Who Are Currently Incarcerated’.94 Other references are more nuanced. The gallery posthumously exhibiting Sukumaran’s work ironically entitled the show ‘Another Day in Paradise’. The work is described as ‘a vast and sobering series of powerful portraits by Sukumaran, painted during his incarceration at Bali’s Kerobokan jail and from his final incarceration on Nusa Kambangan Island’.95 Arguably, however, not all third-party recipients of the literary proceeds will be protected. Under s 153(4) of the PoCA Cth, a court may treat as literary proceeds derived by a person ‘any property that, in the court’s opinion: ... (d) was not received by the person, but was transferred to, or (in the case of
93 Explanatory Memorandum, Proceeds of Crime Bill 2002 (Cth) 55. 94 On the Inside: A Group Show Of LGBTQ Artists Who Are Currently Incarcerated, Abrons Arts Centre (emphasis added)
272 (2018) 22 Media and Arts Law Review
money) paid to, another person at the person’s direction’. This may include, for example, dependent family members who benefit from the literary proceeds during the artist’s lifetime and, arguably, also those named as beneficiaries of the proceeds from the sale of a deceased criminal’s art. The potential reach of literary proceeds confiscation legislation extends even further when one considers that although the provisions only apply to literary proceeds derived after the PoCA Cth came into operation on 1 January 2003,96 the offence enlivening the confiscation can have taken place before its enactment.97 So, for example, proceeds for the sale of Read’s art since 1 January 2003 may be confiscable as against his beneficiaries despite the fact Read’s notoriety relates to crimes he committed in the 1970s.
Conclusion In this article we have explored a number of novel questions concerning the potential application of criminal property confiscation legislation to the proceeds derived from visual art. Although we have focussed on the benefits derived from the commercial exploitation of criminal art, many of the issues explored in the article, particularly relating to the causal dimensions of notoriety, derivation of benefit, and commercial exploitation, have application to all forms of literary proceeds. While there have been no reported instances of literary proceeds confiscation proceedings in relation to criminal art, this may change with the burgeoning rehabilitative art programs run through prisons and the increasing numbers of criminal artists seeking to make a living from their art. In examining the issues arising in this context, we conclude that literary proceeds confiscation orders are unlikely to be made in relation to the proceeds derived from artworks by former criminals, for several reasons. First, few artworks overtly reference or depict an artist’s criminal conduct. While this is not strictly required under the terms of the PoCA Cth, the background to the legislation indicates that the true intention of the literary proceeds confiscation provisions is to prevent criminals making money from selling their stories. We highlight the differences between the exploitation of notoriety through the more abstract medium of visual art, and the exploitation of notoriety through other media, such as literature and film. These differences suggest that proceeds of crime legislation is less likely to apply to visual art, unless the artist overtly depicts their crimes in their art. Second, it may be difficult to establish the requirement of deliberate commercial exploitation of an artist’s criminal notoriety, and a causal link demonstrating that the proceeds were derived from that exploitation. Certainly where an artist quietly practices their work, and refrains from capitalising on their notoriety, we argue the proceeds they derive from their work should fall outside the confiscation provisions. Artists should not be responsible for the exploitation of their notoriety by others. If they were, they would be forever fettered and potentially all benefits from their art, and indeed theoretically any benefit indirectly linked to their notoriety, would be confiscable. This result
96 Proceeds of Crime Act 2002 (Cth) s 153(3). 97 Ibid s 14. JOBNAME: No Job Name PAGE: 23 SESS: 80 OUTPUT: Fri Jan 4 14:57:13 2019 /journals/journal/malr/vol22pt3/part_3
The application of literary proceeds 273
would be clearly inconsistent with Parliament’s objective in enacting the legislation. Nevertheless, artists may be well advised to monitor and vet carefully publicity and promotional material referencing their criminal past to ensure this aspect of their lives is not unduly sensationalised. Having said this, autobiographical elements that are a necessary part of standard artistic practice, such as artist statements, or integral to a description of the work, such as exhibition catalogues, should not be construed as constituting either exploitation or ‘selling their story’. Third, political appetite for the confiscation of the proceeds of criminal art is likely to be low. Prison art programs are largely considered socially beneficial. As noted by Robert L Lynch, President and Chief Executive Officer of Americans for the Arts, ‘[t]he arts help transform ... communities and the result can be a better child, a better town, a better nation, and perhaps a better world’.98 There is, therefore, likely to be broad public support for past offenders who are attempting to reintegrate into society and build a new life through genuine artistic pursuits. Indeed, it would be anomalous to invest public funds in criminal art rehabilitation programs designed to foster artistic skills, and then incur public expense in targeting ex-offenders who practise those skills in an attempt to create a better future for themselves.
98 Robert Lynch, ‘An Introduction’ in Judith Tannenbaum, ‘Arts, Prisons, and Rehabilitation’ in Clayton Lord (ed), Arts and America: Arts, Culture, and the Future of America’s Communities (Americans for the Arts, 2016) xiv.