Reproduced with permission of the artist
It was the eerie, almost creepy yet beautiful image of a young woman apparently face-up, frozen under the ice while serenely exhaling air bubbles, that caught my attention. CBC News produced a video reporting on how New York-based artist David Popa creates artwork on frozen lakes, in this case Abraham Lake in Alberta. Popa uses chalk and charcoal to create his works. The quality of the ice surface is all-important, he says. He has done other works off the coast of Finland on the frozen Baltic Sea but prefers Alberta lakes because of their deep blue hue, caused apparently by sudden freezing. Popa goes a lot of trouble to create artworks that disappear shortly after their creation, ephemeral works which, because of the medium on which they are created, do not qualify for copyright protection unless preserved in some other medium (like the CBC footage). In copyright terms, this is referred to as “fixation”.
It seems that every couple of years I write a piece about the attributes of copyright, outlining the basic requirements it takes to establish copyright in a work. (This is for readers new to copyright, not the old pros). One of the hot topics right now is the role of AI. Various attempts have been made to register AI-generated works with the US Copyright Office, to date all unsuccessful. In jurisdictions such as Canada, where registration is simply a convenience rather than a requirement (in the US there is also no requirement to register copyright but if a rightsholder wants to take legal action to enforce a copyright in the US, prior registration is required), works generated by AI have received Certificates of Copyright. However, this actually proves nothing as in Canada there is no examination of the work itself. Issuance of the certificate is automatic upon payment of the fee provided the work has not already been registered by another Party. This has led to a legal challenge to the Canadian system from the University of Ottawa’s Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), an action that has proved controversial in some quarters. CIPPIC is challenging the Canadian registration of a work by Indian artist Ankit Sahni, who claimed his artistic work “Suryast” was jointly authored with his AI platform “Raghav”.
But while the role of AI in the creation of a work remains in flux (AI-assisted as opposed to AI-created works are more likely to be recognized as copyright protected), another required attribute, fixation, has not changed. Fixation is the fancy term of art establishing that the work is more than ephemeral, that it can be perceived and has a degree of permanence—although permanence itself is not a requirement. After all, what is “permanence”? In the past I have discussed fixation with regard to such works as sand and ice sculptures, and even wedding cakes. (here and here).
The requirements for fixation vary slightly from country to country. In the US, a work must be “fixed in a tangible medium of expression” meaning it must be able to be visually or audibly perceived. This is to prevent claims to copyright of unexpressed ideas, noting that copyright only protects the expression of an idea, not the idea itself. In the UK, British copyright law does not explicitly require fixation or permanence for artistic works (as opposed to literary, dramatic, or musical works, where it is required). In Canada to qualify for copyright protection a work must be fixed in a material form, such as paper, a video recording, audio recording, hard drives or memory card, even though fixation is not defined in the Copyright Act. The point is to ensure that the creation exists in some form other than in the author’s head. The website Copyrightlaws.com notes that;
In some cases, a work may not be considered fixed. One example may be works such as lectures, speeches, addresses and sermons that have not been written down or recorded in some manner prior to their presentation. The same may be true of an improvised comedy skit, a jam session or an improvised tune. An unsaved image or text on a computer screen is not considered fixed.
While the Government of Canada site gives examples of acceptable material form, other forms beyond paper and digital recordings could include metal, canvas, wood, fabric, concrete and other material substances. What it almost certainly does not included, however, is ice. That is what brought me back to this topic, as outlined in my opening paragraph above.
Popa himself says, “My works are made to disappear. Wind, weather, thaw — nature always takes the final brushstroke… and somehow that impermanence makes the whole thing feel more alive”. His works will last until spring comes when they will disappear along with the ice roads, snowmobile tracks and left-behind ice fishing huts that someone forgot to remove. They must have all disappeared about a month ago, if not sooner.
But is the original work (i.e. not the photograph of the work, but Popa’s original) protected by copyright? Almost certainly not (note the “escape hatch” which is always required when discussing copyright generalities). If I had been able to get to Abraham Lake to photograph the work, I would be in the clear from a copyright perspective to use my photograph, to which I could claim copyright, the basic underlying work being unprotected. However, if I were to take a photograph of the work from the CBC video to use as an illustration for this blog post, or use one from Popa’s website, I would arguably be violating the copyright of either the CBC or Popa. I would need permission. So that’s what I did. I contacted Popa.
I am happy to say he generously agreed to grant me permission to reproduce and display the artwork at the top of this blog post. Thank you, David. If you would like to see how the work was actually created, watch here. It’s a remarkable piece of outdoor artistic creativity.
© Hugh Stephens, 2026. All Rights Reserved