Recently, a Penang-based artist commenced legal proceedings against AirAsia for alleged copyright infringement arising from the unauthorised use of the well-known mural Kids on Bicycle on one of its aircraft.
The artwork, created by Ernest Zacharevic, has been synonymous with Penang’s cultural and tourism landscape for over a decade. It was first produced and publicly displayed as part of a series of murals commissioned for the George Town Festival 2012. According to the claim, the artwork was reproduced on an aircraft and flown to various destinations, including Malaysia, Vietnam, Indonesia and Thailand between October and December 2024 without the artist’s consent.
Beyond the immediate dispute, this case has once again brought copyright law into the spotlight, particularly the persistent lack of public awareness surrounding what constitutes copyright infringement.
In simple terms, copyright is an exclusive legal right granted to the owner of a creative work, allowing them to control how that work is used for a specified period of time. As copyright protection is territorial in nature, it is governed in Malaysia by the Copyright Act 1987.
The copyright owner is usually the author of the work, although ownership may also vest in another party who has acquired a legal interest in it. Works eligible for copyright protection include:
- literary works;
- musical works;
- artistic works;
- films;
- sound recordings;
- broadcasts;
- published editions; and
- derivative works.
It is important to note, however, that copyright does not protect ideas, procedures, methods of operation or mathematical concepts.
In Malaysia, copyright protection arises automatically upon creation of the work. Formal registration is not mandatory, but it is strongly advisable, as registration greatly facilitates enforcement should a dispute arise. Generally, copyright protection subsists for 50 years after the author’s death, although this may vary depending on the nature of the work.
Key Legal Rights
For ease of understanding, the key legal rights may be summarised as follows:
Authors
Authors possess both moral rights and economic (exclusive) rights. Moral rights — such as the right to be identified as the author and the right to object to any distortion or misuse of the work that prejudices their reputation — are typically retained even if economic rights are transferred.
Copyright Owners
Under the Copyright Act 1987, copyright owners are entitled to prevent unauthorised reproduction, distribution, communication or use of their works. Any person who infringes these rights without licence, authority or consent may be subject to civil or criminal liability.
Performers
Performers are protected against the unauthorised fixation, reproduction or exploitation of their performances. They are also entitled to moral rights similar to those enjoyed by authors and may pursue legal action where their rights are violated.
Remedies for Infringement
Where infringement occurs, the affected party may pursue remedies through:
• Civil proceedings, where the court may grant statutory damages, an account of profits, injunctive relief, damages or other appropriate orders; or
• Criminal proceedings, by lodging a report with the Ministry of Domestic Trade and Cost of Living or the Royal Malaysian Police, which may result in fines, imprisonment, or both.
Cases such as this serve as a timely reminder that creative works are not merely artistic expressions, they are legal rights deserving of protection. It is high time that, in the age of artificial intelligence, where open-source materials are increasingly used as references, sources of inspiration or to supplement creative work. Individuals, online influencers and corporate entities alike are fully aware of the rights, remedies, protections, and potential penalties that accompany copyright, as well as other forms of intellectual property law, to prevent disputes of this nature from arising.
What may begin as a lack of awareness, misunderstanding, or insufficient factual and legal due diligence can ultimately result in a costly and high-profile infringement action.
