SODRAC v. Quebec Artists?

Pier-Luk Bouthillier is a Montreal graphic designer. He had previously worked as an Art Director for the cultural weekly “ICI Montreal”, and in 2007, he launched his first in a series of environmentally-themed t-shirts. You can see his t-shirts on his website (as well as some ‘Fleur de lys’ boxer briefs).

One of Mr. Bouthillier’s shirts, J’aime Montréal, features a few stylized drawings of various Montreal landmarks, organized around the slogan J’♥ Montréal. According to the CBC, this got Mr. Bouthillier in some legal trouble.

One would assume that organizations purporting to defend authors and protect their rights would do whatever they can to support an artist like Mr. Bouthillier, but unfortunately, SODRAC, the Society for Reproduction Rights of Authors, Composers, and Publishers of Canada, has decided to act like a copyright troll, threatening to take legal action against Mr. Bouthillier unless he agrees to pay it license fees.

The CBC reports that SODRAC sent Mr. Bouthillier a cease and desist letter, alleging that his t-shirt infringes the copyright in the following two works that it claims to have copyright in: the Montreal’s Olympic stadium, designed by the French architect Roger Taillibert, and Alexander Calder’s “Man, Three Disks” sculpture.

Montreal’s Olymic stadium is an “architectural work”, and Calder’s “Man, Three Disks” sculpture is an “artistic work”. Therefore,  the owners of the copyright in these works have the exclusive right to reproduce them, or “any substantial part thereof”. But are Mr. Bouthillier’s t-shirts infringing copies of these works?

Now, many questions of copyright law do not often lend themselves to easy answers, and lawyers advising artists who are interested in building on the works of previous artists sometimes have to give the frustrating answer “it depends”. But in Mr. Bouthillier’s case the answer is straightforward: he didn’t infringe any copyright because the Copyright Act specifically and explicitly allows him to do what he has done. SODRAC’s claim (as reported by the CBC) is plainly wrong.

There is no question that there’s copyright in the stadium (as an architectural work), or in the sculpture. However, there is also no question that under s. 32.2(1) of the Act, entitled “Permitted Acts”,

It is not an infringement of copyright …

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

So Mr. Bouthillier did exactly what Parliament described as “Permitted Acts”: he reproduced silhouettes of the stadium and the sculpture “in a painting, drawing, or engraving”. The image of the stadium is unquestionably not “in the nature of an architectural drawing or plan”, and the sculpture, permanently situated in Parc Jean-Drapeau, is of “a sculpture …, that is permanently situated in a public place or building.”

L'Homme, sculpture by Alexander Calder (1967) in Parc-des-Îles, Montréal, Québec, Canada Photo taken at dusk, January 31, 2009. By Ronan, at http://flickr.com/people/33601110@N03, licensed under Creative Commons Attribution 2.0 Generic license.

L’Homme, sculpture by Alexander Calder (1967) in Parc-des-Îles, Montréal, Québec, Canada Photo taken at dusk, January 31, 2009. By Ronan, at http://flickr.com/people/33601110@N03, licensed under Creative Commons Attribution 2.0 Generic license.

The CBC article indicates that while SODRAC’s spokesperson recognizes that “an exception exists for public works that allows them to be drawn, painted, photographed or filmed”–apparently alluding to s. 32.2(1). However, “he does not believe that [the exception] includes the right to reproduce their images for commercial purposes.” SODRAC’s spokesperson is certainly entitled to believe whatever he wants, but no matter how deeply he believes otherwise, no such limitation on the scope of s. 32.2(1) exists. As the old legal maxim goes, SODRAC fidem non facit lex (SODRAC’s belief doesn’t make the law).*

But even if Parliament did not explicitly permit Mr. Bouthillier to do what he had done, SODRAC would have a hard time establishing that the t-shirts are even “reproductions” within the meaning of the Act (assuming it actually has standing to sue).

The Copyright Act defines “architectural work” as “any building or structure or any model of a building or structure.” Obviously, Mr. Bouthillier did not build a similarly looking building or structure or a substantially similar model of the stadium, nor did he create a replica of the sculpture. Rather, he created a new artistic work that includes two-dimensional small-size monochromatic silhouettes of the stadium and the sculpture.

Copyright, of course, is not limited to reproductions of exact replicas of work and also extends to any “substantial part” of a work, but as the Supreme Court affirmed three years ago in Cinar v. Robinson, “the Act does not protect every ‘particle’ of an original work,” it only protects that “part of the work that represents a substantial portion of the author’s skill and judgment expressed therein.” The shape of the stadium or the silhouette of sculpture might be a part of their creators’ original expression, but neither of them is a “substantial part” of these original expressions. In fact, suggesting that the images on the t-shirt constitute a substantial part of the architect’s or the sculptor’s highly original and impressive creations is quite insulting to these renowned artists.

Moreover, the Supreme Court further affirmed in Cinar that when one artist borrows from the work of another artist to create a different work, there is no infringement if that different work, viewed as a whole, is not an imitation but rather a new and original work inspired by the first. In such cases there is no infringement. Period. This is exactly what Mr. Bouthillier had done. He borrowed particles of earlier works to create a new and original artistic work.

SODRAC should have known better.

Pier-Luk Bouthillier wearing his t-shirt in front of the Montreal Olympic stadium. (Photo: Paul Chiasson/The Canadian Press). So far, there have been no reports that SODRAC demands payment for the reproduction of the stadium in this image.

Pier-Luk Bouthillier wearing his t-shirt in front of the Montreal Olympic stadium. (Photo: Paul Chiasson/The Canadian Press). So far, there have been no reports that SODRAC demands payment for the reproduction of the stadium in this image.

* I’m not aware of such legal maxim, but I believe there should be one.

Posted in Blog, Copyright, Copyright Collectives

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