In George Nathanael’s post titled “Protecting Graffiti Artists”, he proposed that withholding copyright protection for graffiti is the best response to the question of whether creators of graffiti should be protected the same way as other artists who create murals on their own property. The dilemma of rewarding someone who created a work of art in a public area without authorization played a major role in reaching that conclusion.  The difficulty in properly applying moral rights to graffiti (which are often created by one person and then altered by another) was another issue that was raised.  An example of conflict arising from copyright protection in graffiti was the recent cancellation of a photographer's art show in Toronto due to concerns that the copyrights of the graffiti artists were being infringed upon.

In contrast, there was an interesting incident last month where it appeared that a painter had combined two photographs to create an award winning work of art. In a situation with such a fact pattern, is there a violation of copyright if the painter did not license the right to create a copy or a derivative work of the photos? The answer is that it depends. The copyright laws of both Canada and the US allow certain uses of original works under ‘Fair Dealing’ provisions (s. 29 of the Canadian Copyright Act) and ‘Fair Use” provisions (s. 107 of the US Copyright Act).

Fair use and fair dealing jurisprudence is riddled with many inconsistencies and ambiguities in its application. In analyzing a few cases such as Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Foundation, Rogers v. Koons and Blanch v. Koons, the subjective nature of court decisions becomes obvious. The ‘fair dealing’ factors under s. 107 of the Act are: purpose and character of use, nature of the copyrighted work, amount and substantiality of the work used, and the effect of the use on the market value of the original.  Which of these factors are rendered more important seems to be entirely up to the courts. As per William Patry’s analysis, it was the negative effect on the market value of the original work that “tipped the scale” in favour of the plaintiff in Video-Cinema Films, even when it was established that the purpose of the dealing was educational and only a tiny amount of the original work was copied. On the other hand, in Rogers v. Koons, in addition to the market value factor, the amount copied was also a major deciding factor in favour of the plaintiff. In Blanch v. Koons, however, the sole deciding factor was the transformative nature of the new work and the focus was on the varied purpose of the new work. I feel that principally focusing on the extent of the negative effect on the market value of the work of the original artist is the best approach.  It provides a good indication of the loss suffered by the original artist.

In Canada, courts seem to have gradually progressed in the direction of a broader definition of ‘fair dealing’, as established in the Law Society of Upper Canada v. CCH Canadian Limited (CCH) case.  If one were to consider the application of the Canadian ‘fair dealing’ test to the aforementioned facts where the painter copies two photographs into a different medium, it is possible that courts would expand the category of the enumerated purposes of research, criticism, review, private study or news reporting to incorporate a case such as this. Moreover, it is unclear that evidence exists showing that the photographers' market is affected negatively by the painting. On the other hand, the copied work is substantial as significant portions of the two photographs were copied.  Additionally, the painter received publicity and monetary benefits, as a result of the painting being entered into an annual watercolor exhibition.  Once again, it is hard to speculate which of the ‘fair dealing’ factors will tip the scale in favour of the painter or the photographers.

What then is the best practice to clear the ambiguities in the application of the ‘fair dealing’ doctrine in Canada? Some of the obvious solutions that come to mind include legislation of the factors set out in the CCH case or the adaptation and borrowing of foreign ‘fair use’ provisions. Professor Pina D’Agostino, however, recommends an alternate solution where the parties directly affected should together develop the guidelines which can assist them in fair-dealing decision making, and which may be ultimately considered if the parties end up in court.