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terms Copyright and the Artist by Ann Carisen Tracy found out the hard way that an artist doesn't necessarily have the right to make and sell copies of her paintings. Employed bya magazine publisher, she was asked to paint a scene of English Bay for an upcoming issue. When her painting was not used by the publisher, she made prints and sOld them in souvenir stores along Robson Street. article to discuss all of the provisions of the Copyright Act and their application to artists, the following brief summary of the main provisions of the Act provides some guidelines. Copyright is a form of intellectual property which gives the copyright owner the exclusive right to copy, reproduce. perform, publish, translate, adapt, record. or broadcast an original literary, dramatic, musical or artistic work. The work must be original--it must originate with the author, be the product of the author's labours and skill, and not be copied from another. Artistic merit is notrequired. - 25th Anniversary Print for Sale A detail from the winning artwork of the North Vancouver Community Arts Council's 25th Anniversary juried competition is shown below. This limited edition silkscreen print is available at the North Vancouver Arts Council office in Presentation House and at the following locations: Bilton's Arts Centre (109 East 1st). The Framing Experience (1509 Lonsdale). and SaveOn Framing & Art (Park & Tilford). "The copyright attached to a work of art is a valuable property right, and one which an artist should be aware of and protect to the greatest extent pOssible." Her employer saw them in a window and was furious. He had a right to be. The Copyright Act specifically provides that the employer is the first owner of the copyright in a work of art, unless there is an agreement to the contrary. The copyright attached to a work of art is a valuable property right, and one which an artist should be aware of and protect to the greatest extent possible. If an artist is not aware of the copyright law, he or she may unexpectedly lose the right to control the copying of that artwork. What should Tracy have done? She should have negotiated the ownership of copyright in her employment contract, or if that was not possible, she should have obtained either an assignment of the copyright for that particular painting from her employer or the permission to make copies of it. Without such an arrangement she has no right to make and sell copies of her paintings. Ernie is a commercial artist engaged to draw teddy bears for use in a department store's advertising campaign. He thought he could control the use and copying of his drawings. He knew that as a commercial artist retained on an assignment basis he was the first owner of the copyright. He also knew that copyright assignments had to be in writing, and he had signed no agreement with the store. He even registered the copyright to the drawings in his name. When the store started to use his drawings on packaging and as framed prints, he thought he was in a good position to stop the store from making unauthorized copies. He was wrong. The court found that in the commercial art industry, it was usual practice for the person hiring an artist to have unrestricted rights to use that work of art. Even though there was no assignment of copyright. there was an implied licence. Unlike Tracy's story. Ernie's story is true. based on an actual case decided in 1992. Ernie was the owner of Cselko Associates, the store was Zellers Inc. and the bear was Zeddy Bear. It should be noted that this case is controversial, as not everyone believes that the commercial practice is to give the person commissioning commercial art all rights to it. Other courts may find that there was no implied licence in similar situations. But as both these examples demonstrate, it is important for all artists to have a basic understanding of the laws of copyright and how they can be used to protect their rights over their artworks. Although it is beyond the scope of this The work must also be embodied in a tangible medium, and there must be some means of sensing from that tangible medium its information or artistic idea. Thus., copyright does not apply to dramatic-works, choreography, or oral presentations which are only performed or broadcast live. Inmost cases, the first owner of the copyright is the author. However, if the author is an employee, then the first owner is the employer unless there is an agreement between the employer and employee to the contrary. In addition to paintings and drawings there are many works which may enjoy copyright protection, including books. pamphlets. lectures, dramatic works. song lyrics, melodies, sculptures, plans and specifications. Copyright may be registered or unregistered. but registration can be advantageous as it provides the owner with a certificate of registration and presumption of ownership of the copyright. It may also be the basis for obtaining damages for copyright infringement. Inmost cases, a valid copyright in a work, whether registered or not, subsists for the lifetime of the originator plus 50 years after her/his death. If a work was a joint effort, the 50-year period runs from the death of the last surviving originator. For photographs, tapes and records, the copyright exists for 50 years from the making of the original work. Artists should be aware that ownership of the copyright is separate from ownership of a particular work of art, and that it can be as valuable an asset as the work of art itself. Although clarifying copyright ownership in writing may appear to be unnecessary, or at odds with the artistic expression embodied in a work of art, it should not be ignored lightly. Understanding the principles of copyright is an essential first step. Bqt the law of copyright is complicated and evolving. Ernie had the basics, but he found that it wasn't enough for him to avoid the pitfalls of this complex legal area. Ann Carisen practises intellectual properrvlawatSwinton & Company, a Vancouver-based lawfirm. Lookfor future articles on legal matters relevant to artists in upcoming issues, or, ifyou have a specific question, callAnn at 687-2242. The cost is $25, and all prints are signed by the artist, Angie Radwan-Pytlewski. T-shirts with he same image are also available for $10. All of these items can also be purchased at the North Vancouver Community Arts Council AGM on Tuesday, September 20th. 6 Arts Accc I 994