In a bustling streets of Penang island, the “Bicycle Mural” painted by Lithuanian artist Ernest Zacharevic in 2012 has not only drawn the attention of millions of tourist and locals alike, but has also caught the eye of AirAsia, a Malaysian-based budget airline. A recent claim by Ernest against AirAsia of using his iconic mural as the livery on an AirAsia plane without his consent [1] has raised public ire and highlighted commercial exploitation in intellectual property rights.
In Malaysia, unlike trademarks, patents or industrial designs, copyright does not require formal registration to be protected by law. Copyright is automatically endowed upon the creation of an original work [2]. It remains with the author for their lifetime and extends for 50 years after the author’s death [3] under the Copyright Act 1987 (“Act”) – the cornerstone of protection for artists like Ernest against the unauthorised use of their creative expressions.
The Act recognises “artistic works” to include “graphic work” (which in turn includes paintings and drawings) [4], thus encompassing creations like Ernest’s mural. For a work to be eligible for copyright, it simply needs to be original and reduced to material form, such as being painted on a wall [5], regardless of its quality and purpose for which it was created [6]. Additionally, the author must also qualify as either a Malaysian citizen, permanent resident, or a body corporate established in Malaysia [7], or the work must have been first published [8] or made in Malaysia [9].
Copyright infringement occurs when a work is used without the consent or license of the author [10], who holds exclusive right to control the reproduction of the work and its public display [11].
Notwithstanding Ernest’s claim, AirAsia will certainly attempt to legally justify and defend the unconsented use if the matter is litigated in Court. It will be for the Court to decide if the defence raised is applicable taking into account all the circumstances of the case.
If AirAsia is found to have infringed Ernest’s copyright for the bicycle mural, the legal remedies against AirAsia may include injunctions to restrain further unauthorised use of the mural, damages for losses incurred and profits gained from the infringement [12]. The Court may also consider awarding statutory damages up to RM25,000.00 for each work or additional damages to reflect the flagrant nature of the infringement and to serve as a deterrent against other similar infringement [13].
In the recent case of Pekat Solar Sdn Bhd v. Suria Dan Sonne Sdn Bhd & Anor [2023] 6 CLJ 790, the High Court was ordered the Defendant to pay RM100,000.00 in statutory damages for copyright infringement involving 4 photographs which the Defendant published on its website without the consent of the Plaintiff. Similarly, in the case of Kohwai & Young Publication (M) Sdn Bhd v. Lembaga Pengelola Dewan Bahasa Dan Pustaka [2013] 10 CLJ 365, the High Court awarded additional damages of RM50,000 as the infringer had been benefiting and flagrantly infringing the copyrights over 3 drawings for 2 years.
The outcome of this dispute between Ernest and AirAsia will certainly influence how artists view the protection of their creative works in Malaysia. As this case unfolds, it serves as a reminder of the crucial balance between copyright protection and commercial use, potentially guiding future interactions between artists and businesses.
By the way, do you also know that as Malaysia is a signatory of the Berne Convention, the copyrighted work made in Malaysia would also be recognised by each contracting member country of the Berne Convention?
[1] Zack, J. (2024, November 25). “We need to talk,” says artist to AirAsia over use of his famous mural. The Star. https://www.thestar.com.my/news/nation/2024/11/25/039we-need-to-talk039-says-artist-to-airasia-over-use-of-his-famous-mural. Accessed on 4 February, 2025.
[2] Section 26(1) of the Act
[3] Section 17(1) of the Act
[4] Section 3 of the Act
[5] Section 7(3) of the Act
[6] Section 7(2) of the Act
[7] Section 10(1) of the Act
[8] Section 10(2) of the Act
[9] Section 10(3) of the Act
[10] Section 36(1) of the Act
[11] Section 13(1) of the Act
[12] Section 37(1) of the Act
[13] Section 37(7) and 37(8) of the Act
About the Author
Lee Jia Vin is a Legal Associate at XK Law, bringing a wealth of experience across a diverse spectrum of legal matters. Her expertise spans corporate disputes, industrial relations litigation, adjudication claims, and criminal cases. Jia Vin is committed to maintaining a balanced lifestyle, engaging in activities such as yoga, hiking, swimming, and playing ultimate frisbee to support her well-being.
