Tag: Norval Morrisseau

Hijacking a Musician’s Identity to Promote AI-generated Music Isn’t Copyright Infringement: It’s Outright Fraud

Image: Shutterstock.com

Early last week there was a flurry of articles, including one on Billboard, reporting on the strange case of Nova Scotia musician Ian Janes. Janes discovered that his Spotify artist profile included music that wasn’t his and which he hadn’t recorded. Someone had apparently created “Musak-like” AI-generated tracks and had added an album, named Street Alone, to Janes’ artist profile as a way of boosting the album’s take-up. How they did this is not clear although they must have hacked the system in some way. Janes had Street Alone removed from his profile, although it reportedly remains up on Spotify but not under his profile.

One assumes if the AI album was surreptitiously posted to Janes’ account, it could also have been added to the profile of other artists. Janes stated that the person or entity doing the posting could actually be getting any royalties the album is earning because payments are normally made through a distributor who could be directing royalty payments, such as they are, to the fake artist. (Not that they are likely to get rich. There is a 1000 track minimum streaming requirement on Spotify before any royalties are paid, and given Spotify’s track record of paying approximately $3.00 per 1000 streams, it takes over 33,000 streams for an artist to earn the princely sum of $100). However, the fake listing could also boost the stream count of the album, raising its profile in the algorithm. In effect, it appears that someone is hijacking the profile of a known artist to promote low grade AI-generated music. Is this legal? No, it’s not, but why not? Does copyright law help?

Billboard reports that Janes’ lawyer lamented it’s not technically a copyright violation unless the music uses Janes’ likeness or his actual compositions. No one has copied his music; they have just claimed he wrote and performed a piece which he had nothing to do with. Another publication (allaboutai.com) claims this case has revealed significant gaps in Canadian copyright laws, which primarily address human-created works, noting that “Current statutes do not fully account for the complexities of AI-generated content”. This is true, as I pointed out recently in a blog post on the issue of the loophole in Canadian copyright practices that allows registration of AI-generated works even though it is generally accepted that such works do not receive copyright protection under Canadian law. Here we may have an example of an anonymously created AI-generated work trying to find a recognized human artist to associate with. While there is a tangential relationship to copyright, this story is not about copying a specific work or illegally generating income from a copy. It is about the droit d’auteur, the integrity of an author’s or artist’s work and their reputation. In this case, the key issue is the potential damage to Janes’ reputation if inferior work is passed off under his name.

However, copyright law (in Canada or elsewhere) does not specifically include the ability to protect one’s identity or name. A name or identity cannot be copyrighted–although a work by that person can be. Nonetheless, there are some forms of legal protection available. A related concept known as the right of publicity (or right of personality) affords some protection. In Canada, this either falls under provincial privacy laws (BC, SK, MB and NL) or common law principles of defamation. In the US there are laws protecting publicity rights in some states. Another way to protect one’s identity and image is to register it as a trademark, although this is usually done by well-known personalities. There are various requirements such as demonstrating a record of marketing products that use the trademark designation. (Michael Jordan shoes, Frida Kahlo dolls, even Fred Perry tennis shorts—remember him?). But in my view Janes should not have to trademark his name and identity, nor should he have to resort to defamation or privacy laws. To me, perhaps simplistically, this case is about fraud, producing a fake product and passing it off as the real thing.

Under the Criminal Code of Canada, fraud is defined as depriving someone of “any property, money, or valuable security or any service…by deceit, falsehood or other fraudulent means…”. Recently I wrote about the scandal of the Norval Morrisseau art fraud. The principal perpetrator, David Voss, was sentenced to five years in jail for the fraud (technically he pleaded guilty to forgery) while his co-accused Gary Lamont was convicted of forgery and defrauding the public. In sentencing, the judge in the case focused as much on the damage to Morrisseau’s legacy and reputation caused by the fraud as to the harm suffered by those who had purchased fake paintings. Surely the same is true of Janes, or any other musician, whose work is tainted by false claims that a shoddy piece of music was produced by them. The fraud per se would have been perpetrated against a Spotify user who thought they were playing Janes’ music, but the real fraud was perpetrated against the artist, their work and their reputation.

There are examples of fraudulent works where the false attribution of author is also a copyright violation, as in the case of the plethora of Chinese knockoffs of J.K. Rowlings’ Harry Potter works. For example, Harry Potter and the Walk-up Leopard Dragon and Harry Potter and the Chinese Porcelain Doll, both published in Chinese but labelled as being written by Rowlings, were fraudulent works, total fakes, but under US law they also violated Rowlings’ copyright so that is what Warner Bros. used to shut them down. They were unauthorized derivative works. But the definition of a derivative work is much narrower in Canada, as explained here, in this post by Carson Law. In the case of Janes, none of his works was copied or infringed, only his identity and name were misused so, as noted by his lawyer, there are apparently no grounds for bringing a copyright infringement case in Canada. But claiming that a random work was produced by someone who had nothing to do with it is clearly misrepresentation and deceit, in short, fraudulent activity.

Will anyone do anything about it? Of course not. It took two decades and a documentary film that fully exposed what was going on to shame the Canadian authorities into doing something about the Morrisseau fraud. It was only through the dogged determination of one detective in the Thunder Bay Police Service (Sgt. Jason Rybek) that action was finally taken.

The conjunction of AI-generated music (which has no copyright protection), online platforms that market tracks from literally millions of artists (it is estimated there are 11 million artists on Spotify), combined with the ingenuity of hackers who have been able to successfully post ersatz music to legitimate Spotify accounts as a way to promote machine generated tracks, has created a perfect storm allowing for these kind of shenanigans. The damage is done to legitimate artists–who have a tough enough time as it is to profile their music– without having to carry the burden of inadvertently promoting someone else’s musical garbage. To willingly assert that your work is the creation of someone else, whether it is music generated by AI, or paintings produced from a sophisticated “paint by numbers” scheme as in the case of the Morrisseau forgeries, is surely outright fraud. The real artist pays the price. And that’s not fair.

© Hugh Stephens, 2025. All Rights Reserved

This blog post was updated to include reference to Spotify’s payouts in the second paragraph.

Indigenous Art and Cultural Appropriation: The Art Scandal Involving Fake Norval Morrisseau Works is Finally Coming to a Close

Credit: Ontario Provincial Police

It has been reported in the media that the “principal architect” of the Norval Morrisseau art fraud, one David Voss, has been sentenced to five years in jail for his role in this widespread and long-running criminal enterprise. Co-conspirator Gary Lamont is also serving 5 years. Six others, including some of those involved in producing and distributing the fakes, have also been charged. Hopefully this will bring closure to this high-profile art scandal, but a lot of damage has been done to Morrisseau, his legacy and to Indigenous art in general, as well as to collectors and the art market for Indigenous works.

In the past I have written about the challenges faced by Indigenous peoples and artists in protecting their works and cultural heritage (for example, here, here and here). Copyright provides an inadequate framework to protect works of collective traditional culture, an issue that the World Intellectual Property Organization (WIPO) is working hard to address. This year WIPO reached agreement on a new treaty covering genetic resources and associated traditional knowledge. Once ratified by 15 member states, the treaty will, according to WIPO, “establish in international law a new disclosure requirement for patent applicants whose inventions are based on genetic resources and/or associated traditional knowledge”.  It’s a start but, to the disappointment of some, what it does not do is address the issue of “traditional cultural expression”. Earlier drafts of the treaty went beyond genetic resources to include means to protect and control traditional cultural practices and knowledge, such music, dance, art and handicrafts. This would have given Indigenous peoples the ability to preserve cultural integrity as well as rights of attribution. That apparently was a step too far, but if the treaty dealing with genetic resources enters into force, this could give impetus to further diplomatic work to develop a treaty covering traditional cultural expression.

Cultural appropriation and borderline copyright infringement is particularly prevalent when it comes to the visual arts. Indigenous artists, although entitled to copyright protection on their individual works, have nonetheless found lookalikes marketed as native works, although most such knock offs do not normally infringe copyright because they are not reproductions of the work of any individual artist. Rather, they are cheap copies of a genre. What is being infringed is a cultural tradition, and is a pervasive form of cultural appropriation. While knock-offs and lookalikes are one thing, out and out art fraud is even more outrageous. The most high profile example is the art fraud scandal involving the late Anishinaabe (Ojibwe) artist, Norval Morrisseau, who is the ultimate victim.

Morrisseau, who died in 2007, is best known as the founder of the Woodland school of art. A self-taught artist from northern Ontario, he went on to great heights artistically and to some lows personally, including struggles with alcoholism and addiction. Labelled by French modernist artist Marc Chagall as the “Picasso of the North’, Morrisseau was a prolific artist who at times is known to have sold some of his works for a pittance when financial need presented itself. This laid the foundations for an audacious and long-running scheme, dating back to the late 1990s, to produce fakes of Morrisseau’s works, some of which have been displayed in prominent galleries and which have sold for considerable sums. These are not clever forgeries of Morrisseau works, they are outright fakes, works that were never produced by him but which replicate his style and were amazingly “found”, stored in abandoned garages, barns and auction houses. The fraud continued after Morrisseau’s death, reaching an industrial-scale with fakes in the thousands flooding the art market. Writer Luc Rinaldi, writing in The Walrus has an excellent summary of Morrisseau’s background and the complicated and long running fraud investigation and trials.

The case itself is a cautionary tale for art collectors. For years, rumours had been whispered about Morrisseau fakes circulating in the art market. In 2012 a prominent musician but novice art collector, Kevin Hearn, learned he had been ripped off over a supposedly genuine Morrisseau work. It was not until he sued the seller, the Maslak McLeod Gallery in Toronto, for selling him the fake work along with providing a fraudulent certificate of provenance, that things really got serious. Hearn lost the first round when the judge declared he could not determine conclusively if the work in question, Spirit Energy of Mother Earth, was a fake although he accepted that fraudulent works were being produced on a large scale. Hearn appealed and this time was successful, winning a $60,000 judgment against the gallery which, according to press reports, has never been paid. No matter. For Hearn it was vindication.

At the time the trials were being held, filmmaker Jamie Kastner was making “There Are No Fakes”, a two hour documentary about the fraud, featuring some of those who actually painted the fakes, gallery owners (some of whom have lost their reputation; one has been charged as part of the fraud), art experts, lawyers from both sides, friends and associates of Morrisseau-the full panoply. The film also delved into the dark side of the fraud; the drug dealing and sexual abuse engaged in by one of the main organizers of the scheme. There are other backstories in the film as well, defamation suits and harassment. Some owners of what have turned out to be fakes were determined to deny the truth, either because they refused to believe they had been hoodwinked or to protect their investments. All in all, it is a pretty sordid tale.

What the film did, however, was to provide a road map for the police who, until this time, had turned a blind eye to this “white collar crime”.  Spurred on by the film, the Thunder Bay Police Service along with the Ontario Provincial Police finally dedicated the resources necessary to go after the perpetrators, who had more or less been hiding in plain sight. For years the excuse in the art world was, “No one has ever proven in court that any of the works are fakes” (thus the name of the film). The end result, so far, is the conviction and jailing of the two main architects of the fraud, lesser penalties for others involved and pending trials for still others.

The eventual bringing to justice of the lead perpetrators involves more than just clamping down on white collar crime and bringing justice, of sorts, to collectors and art museums. It also finally tackles the issue of cultural appropriation. There is no doubt that Morrisseau’s work has been tainted and his legacy damaged. Not only that, the spirituality and personal expression that he incorporated in his work has been denigrated and reduced to lines on canvas devoid of any deeper meaning. As reported in The Art Newspaper, Kevin Hearn in his victim impact statement said of Voss, the convicted perpetrator, “His calculated fraud has not only stolen and utilised Norval’s identity as expressed in his work, Voss has also exploited the art world and Indigenous culture.”

It is difficult for Indigenous artists to protect their work and to earn a respectable living from it. Fighting an influx of fake native art cheaply fabricated in Asia is an ongoing problem, especially when the problem is more one of cultural appropriation than direct copyright infringement. In Canada, unlike the US, there is no legislation to prevent non-Indigenous works from being passed off as Indigenous created. But there is also copyright infringement where the work of native artists is hijacked and reproduced without permission or attribution, often in the form of paintings, artwork and clothing designs sold on the internet. And then there is outright fraud, as practiced in the Morrisseau case, where the integrity of the oeuvre is undermined by the proliferation of fakes.

Hopefully now that the fraud has been proven beyond any doubt, and a technical means established to differentiate the fakes from the real (the fraud became so widespread that the perpetrators resorted to a “paint-by-numbers” process, which can be identified through infrared technology), the genuine works of Morrisseau will speak for themselves even louder. After two decades of skullduggery, it took a high-profile civil trial and an award nominated documentary film for the wheels of justice to finally turn and bring closure to this sordid, complex and unhappy story.

© Hugh Stephens, 2024. All Rights Reserved.