Was it Careless Infringement (but for a Good Cause) or a Derivative Design Inspired by Another Indigenous Artist? (The “Every Child Matters” Copyright Story)

Credit: Michelle Stoney. Used with permission

Sometimes copyright issues are essentially black or white. There was obvious infringement. It was done for commercial gain. It was bad; it shouldn’t have happened. Period. Often, however, things are not so clear and there are various shades of grey involved. This is one of those cases. I will let you be the judge since this is unlikely to go to court, except perhaps the court of public opinion.

While grey may be one colour to describe this case, in actual fact the most appropriate colour is orange. That is the colour that was selected as part of a campaign to bring to public attention the legacy and shameful history of Canada’s Indian residential schools, marked by National Truth and Reconciliation Day (a new public holiday beginning in 2021 on September 30 of each year). The slogan “Every Child Matters” was added in memory of the tens of thousands of children who were sent to these schools, especially the not inconsiderable number who died, often from epidemics that swept the schools owing to poor food and unsanitary conditions. The symbol of a handprint, often in orange, or white or black on orange, has come to be accepted as a symbol of the lost children. Suspected unmarked graves have been located at many residential schools adding to the poignancy of the slogan.

It is in this context that our copyright case arises. Michelle Stoney is a well-known and respected Gitxsan artist from Hazelton, in northern British Columbia (BC). She is a graduate of the Emily Carr University of Art and Design in Vancouver. In 2019 she won the Crabtree McLennan Emerging Artist Award awarded by the BC Achievement Foundation. She sells her artwork, which is based on traditional Gitxsan designs, through her website, via Etsy, and other online outlets. One of her more prominent works is a human hand in the form of a Gitxsan design (the image at the top of this blog post, on the right). That is the background on Michelle.

Now, like a novelist starting a different thread in a story, a thread that will eventually join the others as the story reaches its climax, I am going to change gears, and talk about lacrosse. Lacrosse is North America’s oldest sport. A form of outdoor lacrosse was played by native tribes in contests that sometimes lasted for days in the St. Lawrence Valley as early as the 1600s, when Europeans first wrote about it, but it probably pre-dates European contact. In the 1860s the rules of field lacrosse were codified, and it became known as Canada’s national game. This was an unofficial designation as it competed for this title with ice hockey. (In the 1990s the Canadian Parliament adopted a motion naming lacrosse as Canada’s official “summer game” and ice hockey as its “winter game”.) Many of the players then and today came from the indigenous (First Nations) community. In the 1930s box lacrosse was developed as a sport that could be played in unused hockey arenas during the summer, and box lacrosse is the one form of the game that has enjoyed commercial success as a professional sport. In the 1990s the National Lacrosse League (NLL) was established in the US. Today, it is based in Philadelphia and has 14 teams. Nine of these are in the US and five in Canada. The vast majority of the players are Canadian, many of them from First Nations.  In short, there is a strong connection between the sport and First Nations communities.

This is where I bring the two strands of the story together. The CBC recently reported that Michelle Stoney had learned that the NLL had copied her Gitxsan hand design and was using it on orange tee-shirts that it was selling to raise funds for causes associated with those who attended former Indian residential schools. The NLL website promoted the tee-shirts as follows;

“Join the National Lacrosse League in raising awareness about Native American residential and boarding schools, which were created to isolate indigenous children from the influence of their culture in order to assimilate them. This Every Child Matters warm up shirt was designed by Dave Sowden, a Halifax Thunderbirds employee of Indigenous descent, and is a replica of the shirt worn by NLL players during week six of the 2021-22 season. Your purchase tells us that you support our NLL Unites initiative in support of the Every Child Matters movement and the NLL will donate directly to the Gord Downie & Chanie Wenjack Fund and the National Native American Boarding School Healing Coalition.” (the Gord Downie & Chanie Wenjack Fund aims to build cultural understanding and create a path toward reconciliation between Indigenous and non-Indigenous peoples.)

You couldn’t find a better cause. The initiative appears to have been started by the Halifax Thunderbirds NLL team. Its owner, Curt Styres, is the only owner in the league of native descent; the team’s captain, Cody Jamieson is likewise from a First Nations family. According to reporting in a Halifax university journal, the Thunderbirds’ involvement began with orange jerseys with stylized handprints on them. The handprints were provided by Donna Longboat, Jamieson’s grandmother and a residential school survivor and Vera Styres, Curt Styres’ mother, also a residential school survivor.

So how did we go from Donna Longboat’s and Vera Styres’ handprints to Michelle Stoney’s design? The path is not clear. According to the CBC report, Stoney’s original design was created for Orange Shirt Day on Sept. 30, 2020. It comprises mountains and trees to represent the Gitxsan Nation, the flowers to represent children, and the feathers to represent the children who were lost in residential schools. When Stoney saw the lacrosse adaptation on the Facebook page of the Vancouver Warriors lacrosse team, she says she immediately recognized her design. While a hand is a hand, the lacrosse version also features stylized fingers based on feathers, similar or identical to the feathered fingers on Stoney’s artwork. She says it appears that the designer of the NLL version “flipped” her work by tracing the hand and adding the words “Every Child Matters” to replace the mountains, trees and flowers on the palm of her piece. I am guessing that this is pretty easy to do with design software.

Stoney is not making this about financial compensation, although she earns her living through her art. Rather, she says she is okay with others using her creative works, such as the Indigenous feather design, as long as they seek her permission. It’s about moral rights. And she wants an apology. The Warriors removed the design from their webpage, and said they are investigating. I contacted the Thunderbirds for comment, but none was forthcoming.

This episode, which has all the hallmarks of unintended consequences, raises two issues; the appropriation of native designs for commercial purposes, about which I have written in the past, (“Copyright, Folklore and Traditional Native Culture”) and whether adapting the essential elements of a design into a new work is a fair dealing (or fair use in the United States), not constituting an infringement because a new work has been created. Michelle is not the only native artist to have had work copied without permission or compensation. Often overseas vendors simply pick up and copy what they perceive will be a popular design and then sell it on Etsy, Facebook or Amazon. Apart from blatant copyright infringement, there is the cultural appropriation aspect to consider. This latter issue raises many questions. Are only native artists allowed to create native designs? Who qualifies as an indigenous artist? Do you have to hold a status card or simply self-identify? It can get very messy and complicated very quickly. The main message, I think, is to show respect for the artist and their culture and don’t infringe.

Which brings me to the second point. Is the work produced by the Halifax Thunderbirds an infringement? It would take a court ruling to determine that, and that is not going to happen. However, there are a couple of factors to consider. A copy does not have to be an exact copy to be an infringement. There is currently a high-profile case wending its way through the US judicial process (Warhol v Goldsmith). In this case, in 1984 artist Andy Warhol was commissioned to create an image of the musician Prince. Warhol painted a series of silkscreen images on canvas, based on a photograph taken by professional photographer Lynn Goldsmith. (The likeness is almost identical). Upon publication of one of the portraits after Prince’s death in 2016, Goldsmith saw the work and threatened to sue for infringement. In response, the Warhol Foundation launched its own suit seeking a declaration of non-infringement. The Foundation won round one. Goldsmith appealed and won round two. Now it is going to the Supreme Court of the United States for adjudication.

How different does a derivative work have to be to avoid infringement? In the case of Warhol v Goldsmith, the case hinges on the US legal doctrine of “transformation”. Is the derivative work sufficiently different from the original? Has the original been transformed into something new? Although in the case of Canada, there is no transformation doctrine per se, a change of medium will be a factor in favour of non-infringement. In the “Every Child Matters” hand design case there is no change of medium. However, there is still another question as to whether the design produced by the Thunderbirds qualifies for separate copyright in its own right. It’s possible.

In trying to determine whether the Thunderbirds’ depiction of the hand design infringed Stoney’s copyright, we can turn to the Canadian Copyright Act. Section 3 (1) states that “copyright, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever…” (emphasis added). So, the work that Michelle Stoney created and any substantial part of it (substantiality is subjective and is normally decided on a case-by-case basis) belongs to her. On the other hand (and in copyright there is always an “other hand”), Section 32.2 (1) states;

It is not an infringement of copyright (a) for an author of an artistic work who is not the owner of the copyright in the work to use any mould, cast, sketch, plan, model or study made by the author for the purpose of the work, if the author does not thereby repeat or imitate the main design of the work;”

Did the Thunderbirds’ author do more than simply imitate the main design of the work? If he did base his design on Michelle Stoney’s work, did he use a “substantial” part of it or was the use insubstantial? How much originality did the artist who created the lacrosse tee-shirt design put into it, and is that artist then also entitled to assert copyright for that work (Image above—left side)? According to Canadian jurisprudence, a “mere copyist” has no right to independent copyright but, according to this legal blog, “a work which has been substantively derived from pre-existing material will be entitled to copyright if sufficient time, effort, labour and skill have been bestowed”.

That is indeed the question. Learned copyright counsel, judges and law professors will all no doubt have opinions on this question. Since I am none of the above, I won’t hazard a guess. I will say that while it is clear that anyone can legally create a design based on a hand, or a design using a hand with feathers for fingers (since copyright protects only the expression of an idea, not the idea itself), to me the finger feather designs in the second work (created by the Thunderbird organization) look remarkably similar to Michelle Stoney’s design, right down to the smallest detail such as the shapes and regularity of the spaces separating the parts of each feather-finger. It is hard not to draw the conclusion that her design was the basis on which the second work was created. However, is the second work simply a partial copy or is it sufficiently original to be a work in its own right? You be the judge.

If there is a lesson here, it is that it’s always best to communicate with an “author” (which could be an artist, composer, writer) if you are going to adapt or borrow from their work. I understand that this is what finally happened, retrospectively. Curt Styres reached out to Michelle Stoney, apologized, and asked if she would design something for him in future.

At the end of the day both Michelle Stoney and Curt Styres had the same broad objectives in mind; to highlight the plight of survivors of Indian residential schools and to contribute to reconciliation as a way of moving forward. It is a shame that the dispute had to occur, but perhaps it is a “teachable moment” about how careful we all need to be with the images that are so ubiquitous and easy to access on the internet. It is all too easy to succumb to the temptation to do what is quick and easy. Respecting the original author/artist is a good lesson for all of us, and I am glad that this story had a happy ending.

© Hugh Stephens 2022. All Rights Reserved.

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