The (Beautiful) Art of Copyright Protection: Unique Indigenous Challenges in the Visual Arts

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The Woodlands Art School, also known as “Woodlands Style” and “Legend Painting,” is a distinct genre of painting synonymous with Indigenous artists including Daphne Odjig and Jackson Beardy. Known for their vivid colors, bold brushstrokes, and stylized depictions of humans and animals, Woodlands Style painters typically use pictography to communicate traditional cultural narratives.

Norval Morrisseau, an Ojibway artist from northern Ontario, is widely regarded as the creator of the Woodlands style and is credited with revolutionizing Indigenous Canadian art. Despite the commercial appeal, Morrisseau was never able to take full advantage of his practice due in large part to the counterfeits and counterfeits flooding the market. In There is no fake, a documentary investigating the matter, it is estimated that Morrisseau’s counterfeits could account for 3,000 paintings and $ 30 million in fraudulent sales in recent decades.[1]

Morrisseau’s case is just one example of the unique challenges faced by Indigenous artists in protecting their artistic work. According to a parliamentary report examining Canada’s copyright regime, Indigenous artists appear to be particularly vulnerable to economic exploitation.[2] So what is copyright? How does it protect the work of an artist and why are Indigenous artists particularly affected? These questions are discussed below for an overview of what artists need to know to protect their art.

Copyright Basics: When Does Copyright Appear And What Does It Protect?

In Canada, copyright automatically subsists in original and still pieces of “artistic works”.[3] Paintings, drawings, maps, maps, plans, photographs, prints, sculptures, works of art and compilations fall under the definition of “work of art” according to the Copyright law.[4]

Copyright protects original expressions rather than ideas.[5] This dichotomy of protection can create challenges for Indigenous artists, as copyright can only protect the expression of their idea (in other words, their works of art), rather than the knowledge, the stories. and the traditions that are expressed in their works.

If a work is eligible for protection under the Copyright law (i.e. an original literary, dramatic, musical or artistic work), its owner will automatically receive a set of exclusive rights in respect of the art:[6]

  • The exhibition right gives the artist the right to receive payment when his work is exhibited in a public exhibition and is not for sale.
  • The reproduction right grants the artist the exclusive right to authorize the reproduction of his work or of any substantial part of a work in any material or digital form whatsoever. This means that artists have the right to determine who is allowed to make copies of their work and the method by which the copies are made.
  • The broadcasting right grants the artist exclusive authority to determine who is authorized to sell the artwork and the terms of the sale. Unlike the other rights mentioned above, the distribution right ends after the first sale of the work of art.

In addition to the above rights, the Copyright law grants authors of original works two moral rights: the right of attribution and the right to the integrity of the work.

How is counterfeiting determined?

In determining whether or not a contested work infringes copyright, Canadian courts will consider whether there is a substantial similarity between the copyrighted work and the unauthorized reproduction. Copyright protection does not extend to stock devices (such as common genre characters, themes, tropes, clichés, and metaphors), news or historical facts, making such material irrelevant to counterfeit assessment purposes. [7] The fact that Canadian courts do not take these elements into account in their decisions can be a significant barrier for visual artists. Indeed, works of art that copy the same style, or express the same story or the same theme, will not necessarily be considered counterfeit. In Morrisseau’s case, the vast majority of identified forgeries look like his paintings but are not exact replicas, making it difficult to justify copyright infringement.

Additional Limitations to the Copyright Regime Regarding Indigenous Art

In addition to the challenges mentioned above, Indigenous artists are particularly affected by the following issues:

(a) Identification of the artist / owner: Many traditional Indigenous designs are centuries old or were created through community collaboration and therefore make it impossible to identify the artist. This can be a significant challenge for the protection of indigenous copyright, since only the owner of the copyright – first and foremost, the creator of the work of art – is the one who has the right to bring an action. infringement action.

(b) Copyright expiration: Indigenous tradition supports unlimited protection of knowledge and cultural expression, while copyright expires after the life of the author plus an additional 50 years. This means that most traditional Indigenous conceptions and forms of cultural expression are in the public domain and are not protected by copyright.

(vs) Cultural appropriation: The current Canadian copyright regime does not protect against cultural appropriation. Cultural appropriation is the borrowing of expressions, artistic styles, myths, symbolism and know-how without permission from the dominant culture. Unfortunately, it is not uncommon for Indigenous styles and artwork to be used commercially by creators outside of the community.

(D) Cost and access to justice: Unless a work is registered with the Canadian Copyright Office, the burden of proving infringement rests with the copyright owner. This can create a financial barrier for artists to access their legal rights.

Upcoming changes in the way Indigenous art is protected

While there are many loopholes in the current copyright system, there is reason to believe that indigenous works of art will receive protection under a much more appropriate regime. On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent and came into effect immediately. This is an extremely important step in leading the way in the protection of indigenous intellectual property, art and culture. This will prompt Canada to create a more flexible system that opens the door to indigenous peoples creating and enforcing their own laws with respect to cultural knowledge and traditional expressions. In addition, Canada could consider updating copyright laws to prohibit the theft of Indigenous culture through art and to provide remedies for language damage and to the culture of indigenous peoples through stolen and misappropriated works of art.


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