Tuesday, April 18, 2023

Indigenous Painting and the Law in Canada

There has been much attention lately to Indigenous painting and law, particularly coyright and criminal law, in Canada.

For example:

Re Noval Morrisseau

Re Autumn Smith:

The left painting is Autumn Smith's interpretation of her being given a traditional name by her grandmother, and was published to Instagram March 29, 2019. The painting on the right is from Tyler Rushnell and was published on Instagram Nov. 9, 2021. (Submitted by Autumn Smith) 

It is important to understand what copyright law does and does not do. Facts and details matter.

There’s no copyright in:

  • Ideas as such
  • Styles as such
  • Symbols including birds, animals, plants, etc. as such

For example, merely copying or imitation of an idea or style is not, by itself copyright infringement. If Monet’s work were not in the public domain, I could still paint my own version of a pond with lilies, as a long as I don’t copy one of his paintings. I might even get away with copying one of his lilies, if it was one small and insubstantial part of a much larger canvas with dozens or hundreds of water lilies and I paint my own version of a lily pond.

Van Gogh – who is regarded as almost as a deity when it comes to paintings of sunflowers – greatly admired the younger Monet’s sunflower painting – even though it superficially seems rather similar. Nobody owns the idea of sunflowers in a vase.

            Van Gogh                                              Monet

This history of all graphic arts, literature, drama, and music has been predicated on imitation and evolution.

The Indigenous community in Canada has some fundamentally different concepts than “Western” property concepts as embodied in common law based copyright law. For example, in Western copyright law, there is no communal ownership. Copyright initially vests in the creator – or the creator's employer in some circumstances - and is limited in time – now 70 years after the artist’s death.

For Canadian copyright law to apply to Indigenous art, as with any art, certain basic facts must be proven. Any party suing for copyright infringement must show that the work is:

  • “Original” (which may not be obvious in some cases);
  • That the plaintiff is the copyright owner or the assignee (or at least the exclusive licensee of the owner, in which case the owner must included the litigation); and,
  • That the work as a whole or at least a sufficiently “substantial part thereof” has been copied or otherwise dealt with contrary to the Copyright Act.

Imitation or even appropriation of a style may not suffice to establish copyright infringement. If I can master my painterly skills to paint pictures in the recognizable style of a well known artist, without copying any of their works or any substantial portion thereof, that alone is likely not copyright infringement.

If, however, I put the famous artist’s name on it, or hold it out as being an authentic Morrisseau or whoever, it may well constitute actionable civil passing off and/or even serious Criminal Code offences.

Changes of colour or the inclusion or elimination of small details in a “copy” of an original work may not suffice to avoid copyright infringement – though watch to see if the Supreme Court of the USA lets the Andy Warhol Estate off the hook for doing little or nothing more than that. What happens in the USA does not always stay in the USA.

Indigenous artists are no better or worse off than other creators when it comes to the cost of litigation. Lawsuits can be expensive, if done properly. But cost recovery is getting better and damage awards are getting higher. And injunctions can be very powerful – and result in jail time for those who disobey them.

In any case, I have always thought that Indigenous artists should take better advantage of the certification mark provisions of Canada’s Trademarks Act, so as to provide a “seal of approval”, as it were, as to the indigeneity of the artist  and the authenticity of his or her works. There is little indication that this mechanism has been used to adequate advantage – or indeed to any significant extent. Such a collective might even be able to help out with the costs of funding litigation when appropriate.

There is much discussion about a “resale” right that might benefit Indigenous artists. Such a right is unlikely to be established in the USA, with whom we have a very open border, in the foreseeable future. It might greatly affect and even disrupt the art market in Canada. And it would only be of any benefit to living artists who are sufficiently successful such that their works significantly appreciate in value while they are still alive. Otherwise, it could become another vehicle for collectives, estates, and lawyers.