Rights in Copyright: How Artists Can Protect Themselves?
July 22, 2023
In the art world, artists play a pivotal role in fostering creative freedom and enriching our cultures with their work. However, this creative freedom often faces significant challenges when artists have their work commercialized without their consent. This unfortunate situation frequently leads artists to withhold their creative output or resist collaborating with other entities. What complicates matters further is that many artists are not well-informed about their legal rights, lack access to legal resources, and often lack the confidence to pursue legal action due to their marginalized status in the artistic realm. These interconnected issues raise critical questions about the preservation of artistic autonomy and the protection of creative works, impacting not only individual artists but also the larger artistic community.
A Closer Look
We've witnessed artists courageously advocating for their rights and striving to secure their fair share of recognition and compensation for their creative endeavours. A recent case that made headlines in the United States was the highly anticipated resolution of the Andy Warhol Foundation for the Visual Arts INC. v. Goldsmith, concluding in the Supreme Court on May 18, 2023.
The issue at the center of this case pertained to the copyright infringement of Lynn Goldsmith's photograph of Prince, known as "Orange Prince," by the Andy Warhol Foundation in a series of silkscreen prints. The Andy Warhol Foundation failed to secure the required licenses to use the photos or compensate Goldsmith for the image. Although the fair use doctrine was used as a defence, its inapplicability relied on the commercial intent behind copyrighting the silkscreen artwork. The first factor of the fair use doctrine, which considers the purpose and nature of the use, including whether it is for commercial or non-profit purposes, militates against the argument that the Andy Warhol Foundation's use of Goldsmith's photograph was fair.
The Canadian equivalent to the fair use doctrine is the fair dealing exception in the Copyright Act, despite some of their respective differences. It holds a significant position within Canadian copyright law, representing an integral element of users' rights. This provision allows for the reproduction and use of copyright-protected works for specific purposes without the necessity of prior permission, provided that the use or dealing is deemed "fair."
Coming to Canada
A relatively comparable Canadian case that reached the Supreme Court is Robertson v. Thomson Corp. (2006), which highlighted the pursuit of fair copyright use. In 1995, Heather Robertson authored two freelance articles that found their way into publication in The Globe and Mail, with no explicit copyright agreements in place. This led to Robertson taking legal action against the publishers for copyright infringement, objecting to the presence of her articles in two databases, Info Globe Online and CPI.Q, as well as on a CD-ROM.
While acknowledging the newspaper's prerogative to modify the work, the Court emphasized that such modifications should not extend to severing the connection to the newspaper. Both during the trial and the subsequent appeal, judgments favoured Robertson. The courts maintained that for the Globe to avail itself of collective copyright protection, the database must either qualify as a newspaper or a similar format. The organization of articles and their formatting constitutes a significant aspect of a newspaper, elements that are compromised when transferred to a database. Consequently, the courts determined that the database was not a different form of newspaper but rather was considered as a completely new work.
Protecting Your Artistic Work and Creative Freedom
Protecting yourself and your creative work is crucial to building a career where you are treated equitably and justly. Copyright is only one measure to protect your work, and is serviced through the Canadian Intellectual Property Office. Canadian artists can access essential information on copyright, application requirements, process, and fees. This protection establishes your exclusive legal right to produce, reproduce, publish, or perform your original literary, artistic, dramatic, or musical work. This grants you ultimate control over how your work is used. It's worth noting that anyone seeking to use your work must obtain your permission, either through purchase or other authorized means.
In most cases, your original work is automatically protected by copyright as soon as you create it. This grants you immediate protection without any additional steps. However, artists have the option to further fortify their copyright through registration. By registering your copyright, you receive a certificate from the Canadian Intellectual Property Office. This certificate is evidence of your ownership and can serve as a tool in case of legal disputes.
By employing this resource, artists are empowered with the insights and tools necessary to navigate copyright law and protect their artistic works from unauthorized exploitation. Moreover, understanding copyright principles encourages artists to participate in collaborative ventures with confidence, knowing their intellectual property is protected. The ripple effect extends to the wider creative community as a culture of respect for artistic rights. Ultimately, this resource emerges as a catalyst for a vibrant and thriving creative environment where artists can fully realize their potential while ensuring the longevity and integrity of their creative legacy.