The (fine) art of copyright protection: Unique Indigenous challenges in visual arts

The Woodlands school of art, 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 its vibrant colours, bold brushstrokes and stylized depictions of human beings and animals, Woodlands Style painters typically use pictography to communicate traditional cultural narratives.

Norval Morrisseau, an Ojibway artist from Northern Ontario, is widely considered the originator of the Woodlands Style and is credited for revolutionizing Canadian Indigenous artwork. Despite commercial appeal, Morrisseau could never fully capitalize on his practice due in large part to fakes and forgeries flooding the market. In There Are No Fakes, a documentary investigating the matter, it is estimated that Morrisseau fakes might account for 3,000 paintings and $30 million in fraudulent sales over the past few decades.[1]

Morrisseau's case is but one example of the unique challenges that Indigenous artists face with respect to protecting their artistic work. According to a Parliamentary report examining the Canadian Copyright regime, Indigenous artists appear to be especially vulnerable to economic exploitation.[2] So, what is copyright? How does it protect an artist's work and why are Indigenous artists uniquely affected? These questions are discussed below for an overview of what artists need to know to protect their art.

Copyright basics: When does copyright arise and what does it protect?

In Canada, copyright automatically subsists in original, fixed pieces of "artistic work."[3] Paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship and compilations fall under the definition of "artistic work" according to the Copyright Act.[4]

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

If a piece of work does qualify for protection under the Copyright Act (i.e., an original literary, dramatic, musical or artistic work), its owner will automatically receive a bundle of exclusive rights with respect to the art:[6]

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

In addition to the rights above, the Copyright Act endows authors of original works with two moral rights – the right to attribution and the right to the integrity of the work.

How is infringement determined?

In assessing whether or not an impugned work infringes copyright, Canadian courts will consider whether there is a substantial similarity between the copyright-protected work and the unauthorized reproduction. Copyright protection does not extend to stock devices (such as genre-specific characters, themes, tropes, clichés, and common metaphors), news, or historical facts, making these elements irrelevant for the purposes of assessing infringement. [7] The fact that Canadian courts will not factor these elements into their determinations can pose a significant hurdle for visual artists. This is because artwork that copies the same style, or expresses the same story or theme, will not necessarily be held as infringing. In Morrisseau's case, the vast majority of identified fakes bear semblance to his paintings but are not exact replicas, making it difficult to substantiate copyright infringement.

Additional limitations to the copyright regime with respect to Indigenous art

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

(a) Identification of the artist/owner: Many traditional Indigenous designs are centuries old or were created as a community collaboration and therefore render identification of the artist impossible. This can pose a significant challenge to protecting Indigenous copyright as the copyright owner alone – in first instance, the creator of the artwork – is the one entitled to bring an action for infringement.

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

(c) 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 authorization from the dominant culture. Unfortunately, it is not uncommon for Indigenous styles and artwork to be used for commercial gain by creators who are not part of the community.

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

Upcoming changes to the way that Indigenous art is protected

Although there are many shortcomings in the current copyright system, there is reason to believe that Indigenous artwork will be afforded protection under a much more fitting regime. On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent and immediately came into force. This is an extremely important step in building a path to protecting Indigenous intellectual property, art and culture.  It will incentivize Canada to create a more flexible system opening the door to Indigenous people creating and enforcing their own laws with respect to cultural knowledge and traditional expressions. Additionally, Canada might consider updating copyright laws to prohibit theft of Indigenous culture through art and to provide remedies for damage done to Indigenous peoples' language and culture from stolen and misappropriated artwork.

This article was co-authored by Lamont Abramczyk, a summer student in Gowling WLG's Toronto office.