Mural, Mural on the Wall: Were They Commissioned, One and All?

(c) Michelle Loughery, 2007. By permission of the artist.

Maybe you remember the story of the Canadian muralist Michelle Loughery who painted many of the wall murals that adorn the walls of buildings in Merritt, BC, the self-proclaimed “country music capital of Canada”? If you missed it (ICYMI, as they say these days), here is the link to “Mural, Mural on the Wall—Who’s the Owner of Them All?” It is the story of Michelle Loughery, community activist and artist who, with the assistance of local youth, painted most of the murals about a decade ago in cooperation with a local NGO called the “Merritt Walk of Stars Society”. That Society has since been wound up but has been succeeded by another organization, the Canadian Country Music Hall of Fame (CCMHF). It’s a complicated story but it involves who owns the copyright to the murals, at least some of which are clearly marked with Loughery’s © notification. (see photo above).

Why the dispute about who owns the murals? To be honest, I am still not clear as to its root cause. Recognition? Control? Possibly money—the usual source of contention—although neither side (Loughery nor the CCMHF) say they want to commercially exploit the murals. I know that Loughery feels strongly that her authorship and copyright should be recognized, and indeed the website of the CCMHF makes it clear that she was the artist. When I first wrote about the murals, I speculated on who owned the copyright to them and based on what I knew then (or thought I knew), I concluded that it was most likely Loughery. Among other things, even if she had been commissioned to paint the works, in Canada (unlike in the US) there is no “work for hire” doctrine. In other words, even if a portrait or photograph has been commissioned by someone, and the artist has been paid to do the work, the copyright rests with the artist. In the blog, I indicated however, that I was not a lawyer and was certainly not offering legal advice, simply my opinion. I invited any reader better instructed in the law than I to correct me if I was wrong. And guess what? Someone has done so. It appears that while there is currently no “work for hire” doctrine in Canadian copyright law, this was not always the case.

In 2012 Canada updated its copyright legislation with Bill C-11, which when enacted became colloquially known as the Copyright Modernization Act (CMA). As part of that updating, wording previously embedded in the law, known as Section 13(2) was repealed. What did Section 13(2) do? You may have already guessed. It allowed for “works for hire”. It covered works commissioned by someone other than the artist (but only some commissioned works, like an engraving, photograph or portrait) and stated that in such cases, the copyright rests with the party doing the commissioning, i.e. paying for the work, absent any agreement to the contrary.

Here is the text of Section 13(2) of the Canadian Copyright Act, since repealed;

“Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright”.

This section was repealed effective June 29, 2012 when the new Act was given Royal Assent. The new legislation actually came into force on November 7, 2012. Most if not all of the murals were done prior to that date.

Here is an example of the impact of the changes that were enacted in 2012. Prior to that time if you hired a photographer to document your wedding (or any other event), you owned the copyright in the photos and could do with them what you wanted (after you had paid the photographer for their services), including exploiting the photos commercially. After November 7, 2012 you did not have this right. The photographer now owns the copyright, even though you commissioned and paid for the photos. So does this mean that today, after you have paid for copies of your photos, you can’t use them in the way that you want without further negotiations with the photographer? The law anticipated this situation. To ensure that there would be no misunderstandings as to the use of the photographs, which after all are very personal, a new provision was added to the Act in 2012. This section, 32.2 (f) provides that:

It is not an infringement (f) for an individual to use for private or non-commercial purposes, or permit the use of for those purposes, a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.

In other words, as long you use your photographs for private or non-commercial purposes, you can do pretty much what you want with them without further recourse to the photographer, even though he or she still owns the copyright to them.

Much of the discussion about the change in law at the time revolved around photography, and the need for legislative amendments to put photographers on the same plane as other creators. The suppression of Section 13(2) was not the only change made to raise protection for photographs to a level equivalent to that enjoyed by other forms of creativity protected by copyright. But Section 13(2) was not just about photographs, but “engravings, photographs, and portraits”.

It is not clear to me why “portraits” were lumped in with engravings and photographs as forms of creativity where the copyright did not automatically vest in the author. It is generally considered that photography was originally given lesser copyright protection because it was viewed by many as being more mechanical than artistic. While many photographs could be considered portraits, clearly not all portraits are photographs. There is no definition of “portrait” in the Canadian legislation. However, the usual definition of a portrait is a painting, drawing, sculpture, photograph, or other likeness of an individual, especially of the face, and Michelle Loughery’s murals would certainly seem to fall within this definition.

So coming back to the murals, how does all this apply to the copyright controversy in Merritt? If the case ever goes to court, it could and no doubt would be argued that the work that Loughery did was a commissioned portrait which at the time it was produced (the mid-2000s) fell under Section 13(2) of the Copyright Act, thus conferring copyright ownership on the person or persons who commissioned the works. If commissioning could be proved (was there a contract that involved valuable consideration?) the owner could be the Merritt Walk of Stars Society, to which the CCMHF is presumably the legal successor, unless there was an agreement within the project document to grant the copyright in the murals to the artist. Perhaps there was. After all, Loughery was so convinced that the copyright rested with her that she affixed her © notice on the murals at the time they were painted. With regard to whether or not the works were commissioned, it is my understanding that Ms. Loughery’s view is that she was not commissioned to do the work, but was a partner in the project. This is a point of fact that would have to be decided in court.

In my original blog, I commented that I thought her claim to the copyright in the murals was a “slam-dunk”. Oops. I should have avoided such a definitive and loaded term. Ever since the phrase was immortalized by former CIA Director George Tenet in his declaration to President George H. W. Bush that finding weapons of mass destruction (WMD) in Saddam Hussein’s Iraq was a “slam-dunk”, it is the brave person who commits himself with that degree of certainty. Always leave yourself an out. That is what a good lawyer will do!

And that is what I am going to do now. Perhaps the CCMHF owns the copyright to the murals on the basis that they were commissioned at a time when contracting for a portrait conferred the copyright on the contractor, assuming there is no agreement to the contrary. But perhaps the copyright belongs to Michelle Loughery if the work she did was not as a contractee, but rather done on a cooperative basis where she raised some of the funds as a partner. Maybe also there is wording buried in the project agreements that muddies the waters with respect to who owns the copyright.

Hopefully neither party will have to go to court to find out, because they both say that their common interest is in using the murals to promote Merritt as the country music capital of Canada. Why waste money on litigation? One solution might be for the two parties to agree that the CCMHF owns the copyright (although Michelle retains the moral rights) but for the CCMHF to assign the copyright to Ms. Loughery. She in turn would freely grant the CCMHF a licence to reproduce the murals to promote the City of Merritt as a tourist destination. Or perhaps they agree that Michelle owns the copyright and in return she assigns the CCMHF a free non-exclusive licence to use the copyrighted images solely for tourism promotion purposes. It seems to me that either compromise would truly be a win-win outcome for both parties. But what do I know? After all, I am not a lawyer.

© Hugh Stephens, 2019. All Rights Reserved.


Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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