Some readers may recall two blogposts (Mural, Mural on the Wall and Were They Commissioned, One and All?) that I wrote a couple of years ago about muralist Michelle Loughery and her copyright dispute with the Merritt Walk of Stars Society. The disagreement was over who held the copyright to a series of murals that she and a team of volunteers, local artists, and at-risk youth had painted on the walls of various businesses in the small town of Merritt in the interior of BC, about 3 hours’ drive east of Vancouver. Michelle was the artist who designed, directed, and executed the work, in the process training a group of indigenous youth in life and employment skills. The project was funded through government job skills training grants. The youth and various program staff, including Loughery, were paid from these funds. However, what started out as a great community project became enmeshed in a bitter and (it seems to me) unnecessary and avoidable copyright dispute. The controversy arose because of the desire of the Society to value the murals as part of a process of getting additional grants. Sadly, the dispute has not been resolved and continues to bedevil the economic recovery efforts of the community.
This past summer Merritt was surrounded by out-of-control forest fires and an evacuation alert was issued, although not executed, but a couple of small towns not far away burnt to the ground. The fires, combined with the economic impact of COVID, severely damaged one of the town’s main industries, tourism. Tourism was behind the idea of proclaiming Merritt to be the “Country Music Capital of Canada” in the first place. The idea grew out of the Merritt Mountain Music Festival which took place for a few years from the early 2000s to around 2010. One year it attracted almost 150,000 attendees to a town of just 7,000, so you can imagine the strain it put on resources to provide logistical and security support for that number of people over just a few days in the summer.
Some people I talked to were glad to see the festival fold because of the security and health issues it brought with it, although it also created some financial benefits for the town. In any event, building off the publicity generated by the festival, a number of people in Merritt came up with the idea of the Walk of Stars, where handprints of some of the entertainers performing at the Festival were displayed at different locations in town. At around the same time, Loughery was invited to Merritt to manage a project to paint murals of country music stars on the walls of various buildings in the community, with the locations provided by local merchants. She had just completed a similar project in a neighbouring town (Vernon, BC). Loughery painted the murals while the youth involved were given job, life skills and trades training on the various projects, including construction, mural training, scaffold building, façade painting, fence building, landscaping, cultural training, and job experiences in local businesses. I have talked to several people who were involved in the project either through volunteering or working with the youth participants. They were enthusiastic about the benefits it had brought both them and the community.
Alongside the murals, a country music museum was established, called the Canadian Country Music Hall of Fame, displaying memorabilia from various stars. The name was licensed from the Canadian Country Music Association in Toronto. Tied together with the Walk of Stars, the murals, a restarted music festival on a smaller scale and the museum, Merritt had built itself a unique tourist attraction to add to the fishing and camping activities in the region. Everything went well for a while but started to go south, as I wrote in earlier blogs, when issues arose over who owned the copyright in the murals.
The Walk of Stars Society claimed that Loughery had been “commissioned” to do the work and thus the copyright in the murals resided with them. At the time the murals were painted, copyright law in Canada provided that a person or entity who commissioned an “engraving, photograph or portrait” owned the copyright, absent an agreement to the contrary with the artist. (This default to the commissioning party was removed in the Copyright Act revisions of 2012 but the murals were painted before that). Loughery’s position is that she was not commissioned to produce the works, but rather was a partner in the project, assisting with fund-raising efforts (although she does not deny that she received compensation for her work) and, further, it was agreed that she would retain copyright. The issue has not gone to court but the fallout from it continues.
The latest manifestation relates to efforts to reboot the economy, post-COVID (when will that be?), through a series of linked murals along various highways in the province. There is a precedent for this; the Route 66 Mural Art project in the US. Loughery was involved in this project some years ago through the National Route 66 association. She consulted for the town of Cuba, Missouri, one of the towns on Route 66. Various spin-offs have been floated over the years, one of them using murals to tie together the various towns through which Route 99 passes in California, Oregon, Washington, and British Columbia.
Loughery has been promoting a revival of the idea through Art Route Blue, a concept funded by Destination BC, the provincial tourism promotion body. The goal is to get regional tourism associations to work together to apply for provincial grants to develop a linked art route in the province. However, uncertainty over who owns the copyright to the murals in Merritt (and thus the ability to reproduce them in promotional material) is becoming an impediment to moving forward. The role of Loughery and her “Art Route Blue” in moving the project forward appears to be another potential issue, but this all seems to go back to the original dispute over copyright ownership. Loughery sees the artist as central to the project. Without art there is no art route; without the artist there is no art. Many elements have to come together to make this work, but success is likely to come only through a cooperative partnership among all the players. The solution should be straightforward in my view; recognize the rights of the artist and negotiate a reasonable licensing arrangement that would clarify the ownership question and make the controversy go away. I am not privy to any discussions on this—none appear to be happening at the moment—but the dispute appears to be more about recognition and role than money, although clearly there are financial aspects to the art route project.
It may also be necessary to get the permission of the some of the stars in the murals, or their estates, for use of the murals. While there is no “personality right” (publicity right) in Canada as there is in some US states, as explained in this posting on the legal blog Lexology; there are potential concerns.
“In Canada, rights of publicity are protected by the common law tort of ‘wrongful appropriation of personality’, sometimes referred to as ‘misappropriation of personality’, being the unauthorised commercial exploitation of a person’s name, image, voice or likeness. To be actionable, the use must clearly identify the person before any wrong will be attributed.”
Some of the artists granted permission for their likenesses to be reproduced in the murals to promote the youth project, but not necessarily in promotional material for other purposes.
Meanwhile, the agreement between the Merritt Country Music Hall of Fame and the Canadian Country Music Association has expired, and will not be renewed. The facility in Merritt will continue to operate under the new name of the Canadian Country Music Hall of Honour. It is not clear to me why this happened—presumably the licensing fee for the name and affiliation. When I visited Merritt recently, the Hall of Honour was advertised as being open, but was not. COVID was perhaps a factor.
Despite COVID, and the fires, I am sure the town will bounce back, and tourism will continue to be an important part of the economic recovery story. The idea of leveraging off the country music festival is a good one. The assets are still there. The Walk of Stars handprints are well maintained, and the murals are generally in good shape (Loughery has returned from time to time to touch them up), although a major misunderstanding occurred when the owner of one of the buildings (the Desert Inn) on which an Elvis mural had been painted by Loughery—with permission from Elvis Presley Enterprises—decided to paint over half the work. Perhaps the new owners, who had changed the motif of the facility to Indian, complete with an Indian restaurant (Mughal Gardens), decided that Presley and pappadums don’t mix.
I hope that the ongoing controversy over copyright in the murals can be resolved amicably. If you are in a small rowboat in high seas, it is important to pull the oars in one direction. Settle the issue and pull together, and maybe the murals will become part of a wider art route project that will boost tourism in the region while providing some income and recognition for the artists who create the works. That would be the best update of all.
© Hugh Stephens 2021. All Rights Reserved.