Wednesday July 24, 2019

Copyright Law: From Beyond the Grave

Authored by: Marc J. Belliveau Posted in: Intellectual Property

In Canada, the Copyright Act governs all matters related to an artist’s rights to her or his creative works, including how long those legal rights subsist and how they devolve upon the artist’s death.

Back in 1710, when copyright law was first introduced in England, the artist’s monopoly rights lasted only 14 years. Over the centuries, most countries have followed suit and established copyright laws with varying terms of copyright protection; some evolved to cover the remaining life of the artist; however, most jurisdictions also extend the rights well beyond the grave, for terms of 50, 70 or even 100 years after the artist’s death.

The Purple Genius

An interesting “beyond the grave” copyright case in the US was decided on July 1. Some of the circumstances are complicated, but essentially the facts are as follows. In 1981, a photographer (Lynn Goldsmith) did a photo shoot of the pop music artist known as Prince (a.k.a Rogers Nelson). Then in 1984, Andy Warhol created a series of 16 silkscreen paintings, prints and drawings using one of the photographs from that photo shoot.

Warhol died in 1987 and Prince died in 2016.

When Prince died, a magazine (Vanity Fair) immediately published the Warhol derivative work, which then came to the photographer’s attention. The photographer approached the Warhol Foundation for compensation. She was then preemptively sued by the Warhol Foundation in 2017 for a declaration that Warhol did not infringe her copyright and that she was not entitled to any money for his use of her photograph of Prince.

Although the New York court found copyright infringement by Warhol, it concluded that Warhol had sufficiently “transformed” the original photograph to qualify as a “fair use” defence and avoid liability entirely. The photographer plans to appeal the ruling.

The judge went a little further than expected under fair use analysis by opining (like an art critic) that “you know it when you see it”; namely that anyone looking at the Warhol works would immediately “know” they are works of Warhol, and not of the original photographer.

But is it Fair?

If he was alive, what would Andy Warhol think about the outcome? Imagine if the photographer and Warhol had worked jointly during the same photo shoot, and the photographer just handed the photo to him to trace, flatten and colour in his signature “Campbell Soup Can” style. Each joint creator would receive 50 percent of any future revenues from the collaborative work. Instead, Warhol appropriated it for himself and his Foundation can exploit and monetize the transformed derivative work for another 35 years! Even Prince might deem that to be unfair!

In Canada, our copyright law has a similar infringement defence, although called “fair dealing” instead of “fair use”. They are essentially the same legal concepts, namely to give users of protected works some freedom to lawfully reproduce them, and the above Warhol photography case would quite likely have been decided the same way had it been heard in Canada.

Motivation in the Afterlife

Still, the notion that copyright law extends beyond the death of the creator is strangely metaphysical. Unlike patents and trademarks, which have statutorily fixed terms of 20 and 10 years respectively, copyright has this medieval, variable and arbitrary life-based duration of protection.

In the commercial reality of modern artistic creation, an artist’s rights are typically assigned during her or his lifetime to a corporate employer, publisher or distributor, such that there are virtually no valuable rights remaining at the time of death to pass to any heirs and successors. Accordingly, copyright ownership issues are usually governed by the terms of the contracts which the artist entered while alive.

Canadian copyright laws are supposed to create a balance between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator. One may well ask how compensating the unborn heirs and other descendants of the creator, for several decades post-mortem, motivates one’s creative juices to produce original art or other protected works of human expression.

By way of example, suppose an octogenarian musician composes the most popular song ever and dies shortly thereafter. The term of protection is relatively short for his work as compared to the copyright term that a 10-year old composer would receive for the same song, yet they were both apparently motivated, according to “copyright balancing” theory, to compose their respective songs by the lure of “just rewards”. That simple example conveniently unveils the “fiction” behind the traditional copyright balancing argument.

Drastic Reforms Needed

I would argue that: (a) copyright terms should be fixed and not extend beyond the artist’s grave; (b) the artist’s heirs do not deserve copyright rewards (they are not the ones creating); and (c) greater economic rights should be granted to artists while they are alive, as part of the copyright bargain. Such a policy outcome is unlikely as content industries continuously lobby governments for stricter copyright laws and longer terms of protection.

The momentum of centuries of powerful copyright monopolies and collectives entrenches the economic status quo and enables commercial interests (e.g. Disney Co.) to obtain longer and longer terms. The effect of such longer terms is to shrink what works enter the public domain every year, thereby impeding “the public interest in the encouragement and dissemination of works” in the copyright private/public balance and stunting the cultural evolution of modern society.

For more information about copyright law, please contact our Trademark Agent, Marc Belliveau.

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